by Scott Kimpel 

Photo courtesy of Hunton Andrews Kurth LLP

On May 21, 2024, staff of the U.S. Securities and Exchange Commission (“SEC”) published additional interpretive guidance on reporting material cybersecurity incidents under Form 8-K.

Since December 18, 2023, when the SEC’s rules for reporting material cybersecurity incidents under Item 1.05 on Form 8-K took effect, we have identified 17 separate companies that have made disclosures under the new rules. Since that date, several other companies also have made disclosures regarding cybersecurity incidents under other Form 8-K items. A large majority of those companies reporting under Item 1.05 have either not yet determined that the triggering incident was material, or determined that the event was in fact immaterial.

This phenomenon has not gone unnoticed at the SEC, and it has created a great deal of discussion in the investor community as well as among the securities bar. Eric Gerding, Director of the SEC’s Division of Corporation Finance (which oversees public company disclosure), released remarks on May 21 encouraging companies to be more judicious in their disclosure under Item 1.05. Gerding was clear that Item 1.05 should generally not be used for immaterial events:

If a company chooses to disclose a cybersecurity incident for which it has not yet made a materiality determination, or a cybersecurity incident that the company determined was not material, the Division of Corporation Finance encourages the company to disclose that cybersecurity incident under a different item of Form 8-K (for example, Item 8.01). Although the text of Item 1.05 does not expressly prohibit voluntary filings, Item 1.05 was added to Form 8-K to require the disclosure of a cybersecurity incident “that is determined by the registrant to be material,” and, in fact, the item is titled “Material Cybersecurity Incidents.” In addition, in adopting Item 1.05, the Commission stated that “Item 1.05 is not a voluntary disclosure, and it is by definition material because it is not triggered until the company determines the materiality of an incident.”  Therefore, it could be confusing for investors if companies disclose either immaterial cybersecurity incidents or incidents for which a materiality determination has not yet been made under Item 1.05.

Gerding continued by providing a roadmap for voluntary disclosure elsewhere in Form 8-K:

This clarification is not intended to discourage companies from voluntarily disclosing cybersecurity incidents for which they have not yet made a materiality determination, or from disclosing incidents that companies determine to be immaterial. I recognize the value of such voluntary disclosures to investors, the marketplace, and ultimately to companies, and this statement is not intended to disincentivize companies from making those disclosures. Rather, this statement is intended to encourage the filing of such voluntary disclosures in a manner that does not result in investor confusion or dilute the value of Item 1.05 disclosures regarding material cybersecurity incidents.

Given the prevalence of cybersecurity incidents, this distinction between a Form 8-K filed under Item 1.05 for a cybersecurity incident determined by a company to be material and a Form 8-K voluntarily filed under Item 8.01 for other cybersecurity incidents will allow investors to more easily distinguish between the two and make better investment and voting decisions with respect to material cybersecurity incidents. By contrast, if all cybersecurity incidents are disclosed under Item 1.05, then there is a risk that investors will misperceive immaterial cybersecurity incidents as material, and vice versa.

If a company discloses an immaterial incident (or one for which it has not yet made a materiality determination) under Item 8.01 of Form 8-K, and then it subsequently determines that the incident is material, then it should file an Item 1.05 Form 8-K within four business days of such subsequent materiality determination. That Form 8-K may refer to the earlier Item 8.01 Form 8-K, but the company would need to ensure that the disclosure in the subsequent filing satisfies the requirements of Item 1.05.

Echoing informal remarks the SEC staff delivered at the SEC Speaks conference in April 2024, Gerding also discussed how to conduct the materiality analysis when assessing a cybersecurity incident:

Finally, in determining whether a cybersecurity incident is material, and in assessing the incident’s impact (or reasonably likely impact), companies should assess all relevant factors. As the Commission noted in the Adopting Release, that assessment should not be limited to the impact on “financial condition and results of operation,” and “companies should consider qualitative factors alongside quantitative factors.” For example, companies should consider whether the incident will “harm . . . [its] reputation, customer or vendor relationships, or competitiveness.” Companies also should consider “the possibility of litigation or regulatory investigations or actions, including regulatory actions by state and Federal Governmental authorities and non-U.S. authorities.” 

Gerding concluded by offering guidance on what to do when a company determines an event is material but has not yet quantified its impact:

There also may be cases in which a cybersecurity incident is so significant that a company determines it to be material even though the company has not yet determined its impact (or reasonably likely impact). In those cases, the company should disclose the incident in an Item 1.05 Form 8-K, include a statement noting that the company has not yet determined the impact (or reasonably likely impact) of the incident, and amend the Form 8-K to disclose the impact once that information is available. The initial Form 8-K filing, however, should provide investors with information necessary to understand the material aspects of the nature, scope, and timing of the incident, notwithstanding the company’s inability to determine the incident’s impact (or reasonably likely impact) at that time.

Scott Kimpel is a Partner at Hunton Andrews Kurth LLP. This post first appeared on the firm’s blog.

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