Tomorrow’s Argument in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. d/b/a Conagra Refrigerated Foods

First up on Wednesday is Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. d/b/a Conagra Refrigerated Foods, No. 04-597. Although the actual procedural posture of this case is somewhat in dispute, the question presented for certiorari supposes a federal civil case in which a party moved for a preverdict judgment as a matter of law (“JMOL”) under Rule 50(a), lost the jury verdict, and then appealed without having moved either for a postverdict JMOL under Rule 50(b) or for a new trial under Rule 59. The Court will consider whether (and to what extent) the court of appeals can conduct a sufficiency review of the jury verdict under those circumstances.

Argument for petitioner Unitherm is divided between Burck Bailey of Oklahoma City, representing Unitherm, and Malcolm L. Stewart, Assistant to the Solicitor General, representing the United States as amicus curiae. Robert A. Schroeder of Los Angeles will argue for respondent ConAgra. Find the parties’ briefs here, and the amicus brief of the United States here.

Unitherm sued ConAgra in the Western District of Oklahoma. Unitherm brought (inter alia) an antitrust claim, a claim for tortious interference with prospective economic advantage, and a claim that a ConAgra turkey-browning patent was invalid. The district court granted summary judgment for Unitherm on the patent claim and directed the other claims to trial. ConAgra then filed a Rule 50(a) motion for JMOL that (although it is disputed) is assumed to encompass the antitrust claim. The jury ruled for Unitherm on the tortious interference and antitrust claims, awarding damages. ConAgra did not move for JMOL under Rule 50(b), and the Court’s question presented assumes (overriding another dispute between the parties) that ConAgra did not move for a new trial under Rule 59 either. ConAgra appealed to the Federal Circuit, which affirmed the district court’s summary judgment on the patent claim, affirmed the tortious interference verdict on sufficiency review, and vacated the antitrust judgment on the antitrust claim on sufficiency review. Applying Tenth Circuit law because the issue did not “pertain[] uniquely to patent law,” the Federal Circuit held that ConAgra was entitled to bring a sufficiency challenge to the antitrust and tortious interference claims on appeal even though it failed to move for JMOL after the verdict below, but that that failure precluded the Federal Circuit from entering judgment for ConAgra on the antitrust claim – i.e., it could only order a new trial on the merits. The Court granted Unitherm’s petition for certiorari.

Unitherm argues that a 50(b) motion should be a necessary condition for sufficiency review because the trial judge is better situated than the court of appeals to review the sufficiency of the evidence, having (a) the “feel” of the case and (b) an opportunity to carefully consider a written motion posttrial. Unitherm points to precedent (the Court’s Rule 50(b) “trilogy” of cases dating back to the 1940s and 1950s) in which the Court emphasized that the trial judge is the best protector of the rights of the losing party. Unitherm argues further that requiring a Rule 50(b) motion for sufficiency review will speed up litigation, help prevent unnecessary retrials, give additional time to the appellee to respond, present appellate courts with a helpful written opinion on the motion highlighting important evidence, and result in fewer factual issues being decided by appellate courts. As an additional argument for reversal on the facts of this case, Unitherm insists that ConAgra never made a Rule 50(a) motion in the first place. Unitherm also asserts that Rule 59 is not a vehicle for sufficiency arguments on appeal. Unitherm contents that the standard, if any, to be applied on sufficiency review is one of plain error, because a more lenient standard would unjustifiably reward the party who failed to move.

The United States argues that a Rule 50(b) motion is necessary because it is the only device a movant has to challenge sufficiency when the judge postpones her Rule 50(a) ruling in case the jury returns a verdict in favor of the movant. The government argues further that allowing sufficiency review without a Rule 50(b) motion below would be illogical given the reasoning of the “trilogy” precedent. Under that precedent, a court of appeals that finds in favor of an appellant’s sufficiency challenge can only order a new trial; it cannot direct a judgment in favor of appellant. But that would be precisely the opposite result one would expect in a situation – like the one presented here – in which the appellant moved for JMOL under Rule 50(a) but not for a new trial. The government claims that the Court’s precedent should be given strong stare decisis effect in light of Congressional amendments that, the government claims, respected the Court’s rulings. And even in cases in which the trial judge explicitly rules against the movant’s Rule 50(a) motion before submitting the case to the jury, the government argues that movant must file a subsequent Rule 50(b) motion, because the text of Rule 50(b) implies that all refusals to grant JMOLs preverdict are subject to reconsideration postverdict.

Respondent ConAgra points out that it fully and fairly raised sufficiency challenges to each of Unitherm’s claims in pretrial motions practice and in two JMOL motions during trial. ConAgra argues that nothing more was required to preserve the issue on appeal, arguing that the text of Rule 50(b) (actually the same text cited by the United States for the contrary position) implies that a Rule 50(a) motion for JMOL may be considered by the judge postverdict even if the motion is not renewed. Respondent denies that a Rule 50(b) motion will necessarily provide help to the appellate court. After all, the parties are not required to file briefs and the district court need not write an opinion on the motion. ConAgra also rejects the argument that a Rule 50(b) motion is necessary to give the trial court opportunity to consider the sufficiency of evidence, pointing out that the court can take whatever time it needs even without a motion. ConAgra points out that the holdings of the trilogy cases do not dictate the “formalistic procedural trap” that ConAgra claims Unitherm’s theory entails. ConAgra argues that requiring a party to move twice for JMOL unjustifiably differs from the general rule that one objection suffices to preserve an issue on appeal. In the alternative, ConAgra argues that a Court holding that requires a Rule 50(b) motion for a sufficiency challenge on appeal should not be applied retroactively, because ConAgra justifiably relied on Tenth Circuit law, which was not inconsistent with the relevant precedent of the Court, in failing to file a Rule 50(b) motion.