People have such
strong opinions about the Oxford comma that in 2013 the satire site The Onion published an article titled “4 Copy Editors Killed in Ongoing AP Style, Chicago Manual
Gang Violence,”
which ended by lamenting an innocent bystander who
committed suicide after being “caught up in a long-winded dispute over use of
the serial, or Oxford, comma.”
But that little comma before the and in
a series like red, white, and blue is no joke for contract lawyers. Last
week, news broke that the Oakhurst Dairy in the state of Maine would have to
pay its milk-truck drivers approximately $10 million because of a missing
serial comma in Maine's overtime law.
In this class action case, the
two sides were arguing about the duties employees do for which they don’t get overtime pay. This is the
ambiguous sentence that describes the exemptions:
The
canning, processing, preserving, freezing, drying, marketing, storing, packing
for shipment or distribution of:
1.
Agricultural
produce;
2.
Meat and fish
products; and
3.
Perishable good.
The drivers do distribute
perishable goods—milk—but the important part is that there is no comma after
the word shipment in
the phrase packing for shipment or distribution, therefore the drivers argued
that the word distribution is modifying packing and
isn’t a separate thing that makes them exempt.
In other words, the drivers said,
“We don’t package milk” so we aren’t exempt from overtime pay, and the dairy
said, “Wait a minute, you distribute perishable goods, so you are exempt.” And
this all rests on how you interpret the final part without a serial comma: packing for shipment or distribution of…perishable goods.
Complicating matters is that Maine Legislative Drafting Manual tells lawmakers not to use serial commas—an outrage if you ask me
because as the court decision pointed out, the addition of a serial comma would
have made the meaning absolutely clear: it would have clearly marked distribution as
a separate activity.
Instead, lawmakers left it out.
The Maine Manual actually warns
lawmakers about sentences just like the one in question—where a list item is
modified, and it says that instead of trying to solve the problem with a comma,
they should rewrite the entire sentence so they don’t need one.
But they didn’t, which left the
dairy and the drivers with an ambiguous sentence. Worth $10 million.
An earlier court ruled in favor
of the dairy, but now the United States Court of Appeals for the First Circuit
has overturned that ruling in favor of the drivers. Circuit Judge David J.
Barron wrote the opinion, which is more pleasant to read
than most court documents I’ve seen, opening “For want of a comma, we have this
case.”
There’s a long section in the
middle about whether the words shipment and distribution are synonyms, and then we get to a
grammatical argument: that each of the words that describes an exempt activity—canning, processing, preserving, and so
on—are gerunds, but shipment and distribution are both nouns.
Ah ha!” said the drivers. This
means shipment and distribution both
serve the same function, and it’s a function that is different from the
gerunds, also known as the exempt activities. They argue that if distribution
of perishable goods were an exempt activity, it would have been called distributing perishable goods. And the court
agreed. Boom. $10 million.
This isn’t the first time a court
case has hinged on a comma either. Back in 2006, a Canadian company lost a million-dollar case that came
down to a comma before a modifying
phrase.
As the Maine Legislative Drafting
Manual noted, “Commas are probably the most misused and misunderstood
punctuation marks in legal drafting and, perhaps, the English language. Use
them thoughtfully and sparingly,” and I would add “use them with extreme caution
when modifying phrases are involved and millions of dollars could be at stake.”
Sources
Norris, Mary. “A few words about that ten-million-dollar serial comma.” The New Yorker. March 17, 2017.
Victor, Daniel. “Lack of Oxford Comma Could Cost Maine Company Millions in
Overtime Dispute.” The New York Times.
March 16, 2017.
O’Connor v. Oakhurst Dairy. 2017.
Maine Legislative Drafting Manual. p. 113. 2009.