When drafting contracts, briefs, and other documents, the significance of placing a comma is often overlooked. The decision to include or omit a comma, however, could be dispositive in a dispute over the meaning of legislation or a contract. Indeed, in O'Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017), the United States Court of Appeals for the First Circuit found the absence of a comma created an ambiguity when interpreting certain legislation, and that ambiguity drove the outcome of the litigation.
In Oakhurst Dairy, the First Circuit was asked to interpret a Maine statute that governed the eligibility of employees to be paid overtime after working more than forty hours in a workweek. The provision at the heart of the dispute involved an exemption from the requirement to pay employees one and one-half times their regular hourly rate of pay for overtime hours worked. The exemption specifically provided that the overtime statute did not apply to:
The canning, processing, preservation, freezing, drying, marketing, storing, packing for shipment or distribution of:
- Agricultural products;
- Meat and fish products; and
- Perishable foods.
The dispute concerned the meaning of the phrase “packing for shipment or distribution.” The plaintiffs (who were delivery drivers) argued that the phrase “packing for shipment or distribution” constituted a single activity, which would result in the exemption not applying to them (meaning they would be eligible for overtime compensation). The company on the other hand argued that the phrase “packing for shipment or distribution” constituted two distinct activities – one activity being “packing for shipment” and the other being “distribution” of dairy products, which are perishable. If the court accepted the company’s interpretation, the exemption would apply and the employees would not be eligible for overtime compensation.
The parties acknowledged that the dispute over the phrase at issue largely stemmed from the absence of a comma after “shipment” and before “or.” To interpret the phrase’s meaning, the court applied many interpretive tools and ultimately ruled the phrase is ambiguous, which, under Maine law, required the court to give the ambiguous phrase a narrow construction to favor the broad, remedial protections provided by the statute.
The court first examined the rule against surplusage advocated by the company. Under this rule, the court must give independent meaning to each word in a statute and not treat any word as unnecessary. To this end, the company argued that, although “shipment” and “distribution” are synonymous, they are not redundant because “shipment” describes the exempt activity of packing while “distribution” is listed as an exempt activity in its own right. The drivers also contended that there was no redundancy, arguing that “shipment” and “distribution” each describe “packing” and, thus, there is no redundancy. In this regard, the drivers argued that “shipment” refers to outsourcing of the delivery of goods to a third party while “distribution” refers to a seller’s in-house transporting of goods directly to recipients. The court ultimately concluded that the legislature’s use of two different words (rather than using the same word twice) suggested the terms “shipment” and “distribution” were not meant to be used interchangeably and packing was meant to be exempt if it was done for “shipment” or “distribution.”
The court also considered the writing convention of using a conjunction to mark off the last item in a list. To this end, the company argued that there was a comma before “packing” and, thus, before “distribution.” While Oakhurst acknowledged that the exemption’s meaning would be easier to discern if a comma was included before “or distribution,” the company noted that the Maine Legislative Drafting Manual specifically instructs not to use a comma “between the penultimate and the last item of a series.” The drivers countered, however, that the Drafting Manual also cautioned that a missing comma could create ambiguity when an item in a series is modified (which was the case here). Thus, the court concluded that the Drafting Manual did not provide the clear guidance Oakhurst sought. Nevertheless, the court found the convention of using a conjunction to be the company’s most persuasive point.
The court considered another writing convention – one concerning a parallel use. The drivers noted that each of the items in the list clearly constituted an exempt activity (e.g., canning, processing, preserving), but packing was not. Rather, the term “packing” was a gerund while “distribution” and “shipment” were not. According to the drivers, when applying the convention of parallel use, the terms “distribution” and “shipment” must play the same grammatical role – and one that was distinct from the role of the gerund. In furtherance of this convention, the terms “distribution” and “shipment” must be objects of the preposition “for” that describes the exempt activity of “packing” while the gerunds each reflect stand-alone exempt activities. The court noted that the company’s interpretation of the phrase violated these writing conventions.
Ultimately, the First Circuit concluded that the parties’ various textual arguments were unsatisfactory and it had to look to the statute’s legislative history and purpose for further guidance in reaching its decision. The details of the particular statute’s legislative history and purpose are not relevant for purposes of this blog post, however. Rather, the take away from this post should be appreciating the importance of commas and how including or omitting a comma could be dispositive in the outcome of litigation. Although this case involves the interpretation of a statute, the lessons learned here are not so limited. Guiding principles regarding the use of commas and other writing conventions should be strongly considered when drafting contracts, for example, as including or excluding a comma in a particular contract provision may ultimately determine whether a company owes or is owed millions of dollars in a subsequent dispute.