In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., (126 S.Ct. 980 (2006)), when Unitherm rested, Swift moved for a judgment as a matter of law (JMOL) (aka Rule 50) during trial based upon its assertion that Unitherm had failed to put on sufficient evidence to support a finding of antitrust liability. The motion was rejected, the trial proceeded, and Swift put on their defense.

• However, at the close of all evidence, Swift failed to make a renewed motion for JMOL (Rule 50(b)) or a motion for new trial (Rule 59) on the basis of insufficient evidence.

After Swift lost in Trial Court, they went to an Appellate Court and tried to bring up the idea that Unitherm had failed to show sufficient evidence. However, the US Supreme Court held that the failure to make a post-trial motion precluded Swift from raising the question of evidentiary sufficiency on appeal, either to support JMOL or a new trial.

• The majority opinion emphasized that the Trial judge is in the best position to determine sufficiency of the evidence, and thus that a party may not bypass presenting the question to the Trial Court and raising it directly on appeal.