In a time when texting and email largely dominates the every-day communication stratosphere, it is not surprising that the average person’s prose has become somewhat more relaxed in terms of sentence structure, punctuation, and the like. However, it’s unlikely that you have been reprimanded by a friend for forgetting to capitalize a word in a text message. While grammatical errors in leisurely communications may be of little consequence, a missed comma in a formal document could potentially cost you millions of dollars. Yes, millions.
A recent court case in Maine, which settled in early 2018 for $5 million, hinged entirely on the lack of an “Oxford comma” in a Maine state law. The Oxford comma is the often-skipped last comma in a series of items, such as “A, B, C, and D.” In O’Connor et. al, v. Oakhurst Dairy, et al., three truck drivers sued their employer for denied overtime pay, citing a Maine statute that required 1.5 pay for each hour worked over 40 hours, but included the following exemptions for certain workers involved in the following activities (emphasis added):
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 foods
The dispute centered around whether the statute exempted the distribution of the three categories, or just the packing for the shipment or distribution of the items. The United States Court of Appeals for the First Circuit found that the missing comma (after the word shipment) created enough uncertainty, and ruled in favor of the drivers. While awaiting to be heard by the United States Supreme Court, the case settled, with the dairy company paying the drivers $5 million. The missing comma carried the day, as the lawyer who represented the drivers stated in an interview: “That comma would have sunk our ship.”
Although a ruling by the Supreme Court would have clarified a longstanding dispute whether the Oxford comma is necessary to clarify intent of the writer, the lessons here are clear. Focus must be put on each word and punctuation in contract or other document drafting. Simple errors or omissions which may not jump out on paper (or the phone/computer/iPad screen), could have significant effects on the parties involved. It’s recommended to seek advice from qualified counsel to draft or review your contracts and similar documents in order to eliminate those concerns. That misplaced comma may make all the difference.
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