Complying with the New Form 8-K Rules

The new Form 8-K rules are upon us. Public companies are now required to provide more categories of disclosure on a revised and renumbered Form 8-K, generally within four business days after the event triggering the reporting requirement. The new Form 8-K rules require companies to make quick factual and legal judgments about several matters. Most reports must be submitted to the SEC within four business days, and no extension of the reporting deadline is allowed. Moreover, the difficulty of making a correct and timely determination of whether a Form 8-K is required is only slightly relieved by limited safe harbors relating to Rule 10b-5 and Forms S-3 and S-2 eligibility that extend to only some of the new Form 8-K items, as explained in Part II.

To address the new Form 8-K reporting requirements, companies should have an “early warning system” built into their disclosure controls and procedures to help ensure that they do not miss a Form 8-K reporting deadline, as explained in Parts II and III. Some current issues relating to the new Form 8-K items are addressed in Part IV. Part V identifies Form 8-K updating requirements.

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