A little scolding from the U.S. Supreme Court on trial counsel's misstep: SCOTUS reverses Federal Circuit ruling in favor of Con Agra; SCOTUS (J. Thomas) holds that the Federal Circuit could not review District Court ruling that denied ConAgra a Rule 50(a) that ConAgra failed to renew post verdict with a Rule 50(b) or Rule 59 motion for a new trial or JNOV. UNITHERM FOOD SYSTEMS, INC. V. SWIFT-ECKRICH, INC. (04-597) 375 F.3d 1341, reversed. In antitrust action against Conagra for using patent application to monoplize market for browning method for cooked meat,Conagra filed a Rule 50(a) motion before submission of case to jury. The District Court denied Conagras Rule 50(a) motion. After the verdict went against Conagra, it did not file a post judgment Rule 50(b){JNOV or motion for new trial} nor a 59 {new trial} motion. Supreme Court Justice Thomas rules, nothwithstanding 10th Circuit rule allowing appellate review of Rule 50(a) denials without the accompanying Rule50(b) renewal motion, the Federal Circuit should not have reversed the verdict against Conagra on the basis of its unrenewed 50(a) motion. AS Wright and Miller explain:

“Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court’s appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion.” 9A Federal Practice §2533, at 319 (footnote omitted).Thus, the District Court’s denial of respondent’s preverdict motion cannot form the basis of respondent’s appeal, because the denial of that motion was not error. It was merely an exercise of the District Court’s discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b)