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Section 1146(a) grants an exemption from stamp and other similar taxes for certain instruments of "transfer under a plan confirmed under section 1129." A number of cases have considered whether the exemption applies to pre-plan transactions in anticipation of a plan or which are necessary to the ultimate consummation of a plan. In In re Piccadilly Cafeterias, Inc., __ S. Ct. __ (6/16/08) the Supreme Court held that the exemption only applies to transactions pursuant to a confirmed plan.
Travelers Casualty and Surety Co. v. Pacific Gas & Elec. Co., 127 Sup. Ct. 1199 (2007) involved the payment of unsecured creditor claims for attorneys' fees. Here, the creditor claimed such fees pursuant to a prepetition agreement and the Court of Appeal refused to allow such fees under the so-called Fobian rule--i.e., as a matter of federal bankruptcy law, fees cannot be awarded for litigating bankruptcy law issues. The Supreme Court reversed on the ground that the right to such fees was governed by state law, and there was no basis to disallow the claim simply because the fees were incurred in litigating bankruptcy law issues. The Fobian rule was specifically disapproved. The case does not deal explicitly with various bankruptcy doctrines that refuse to award such fees in insolvent cases on the grounds that it would create administrative problems because of a need for constant redetermination and was inconsistent with the equality of treatment of unsecured creditors since some of them don't have contracts requiring payment of such fees. Post-Travelers cases have split on this issue. See In re Electric Machinery Enterprises, Inc., 371 B.R. 549 (Bk. M.D. Fla. 2007) (discriminates and creates administrative problems);In re WCS Enterprises, Inc., 381 B.R. 206 (Bk. E.D. Va. 2007) (no); In re Qmect, Inc., 368 B.R. 882 (Bk. N.D. Cal. 2007) (ok under Travelers and pre-Code United Merchants & Mfrs case); In re SNTL Corp., 380 B.R. 204 (BAP - 9th Cir. 2007) (ok because 506(b) is not applicable and 502(b) does not disallow).
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) (pleading case in which Supreme Court tightens pleading standards; rejects Conley v. Gibson rule that a complaint should be dismissed only if "no set of facts" possible under the complaint would justify relief and seems to reject fundamental concepts of notice pleading; complaint must establish the complaint is "plausible on its face" and that the claims come "across the line from conceivable to plausible"). In Bell Atlantic, the Court expressed concern with settlement imperative once claims get passed the pleadings and into discovery, a concern recently expressed in Stoneridge Inc. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008) (limiting 10(b) actions against aiders and abettors because , inter alia, extensive discovery and uncertainty could "allow plaintiffs with weak claims to extort settlements from innocent companies"). See also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007) (to satisfy pleading standards under PSLRA which require a "strong" inference of scienter, court must consider whether all facts alleged give rise to such a strong
