The U.S. Supreme Court, in a per curiam opinion in 2020, said that the federal courts may issue nunc pro tunc orders, or “now for then” orders, to reflect the reality of what had already occurred. “Such a decree presupposes a decree allowed, or ordered, but not entered, through inadvertence of the court.” But nunc pro tunc orders were not an “Orwellian vehicle for revisionist history,” creating facts that never occurred. Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, 140 S. Ct. 696 (2020). Some commentators seized on the opinion as ringing the death knell for nunc pro tunc orders, especially in bankruptcy cases where nunc pro tunc retention orders have long been the custom and practice. In City of Rockford v. Mallinckrodt (In re Mallinckrodt), 2022 WL 906451 (D. Del. Mar. 28, 2022), U.S. District Judge Leonard P. Stark held that Acevedo was a narrow decision, limited to its facts, that did not foreclose the availability of nunc pro tunc relief where appropriate.

Mallinckrodt involved an appeal from an order of the Bankruptcy Court approving the debtors’ decision to retain a law firm as special counsel under 11 U.S.C. Section 327(e) nunc pro tunc to the petition date. The appellants challenged the sufficiency of the law firm’s disclosures as well as the nunc pro tunc nature of the relief, citing Acevedo. Prior to the Chapter 11 cases, the debtors had engaged the law firm for legal representation on a number of matters, including the defense of litigation relating to the distribution, pricing and marketing of a drug, Acthar Gel, prosecuted by the appellants.

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