Oesterle on Materiality and Bankruptcy Planning

Dale A. Oesterle has posted Bankruptcy Planning is Not Material? on SSRN with the following abstract:

Several recent judicial decisions have held that bankruptcy planning discussions by boards of directors do not have to be disclosed to the public trading markets under the obligations of the United States federal securities acts. The discussions, the courts held, are not "material." It is hard to imagine anything more important to investors than bankruptcy planning discussions by boards of directors. At issue is why courts are engaging in a legal fiction to amend a federal rule on disclosure obligations.