The $10 Million Comma

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 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 diary 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.