The United States case of O’Connor v Oakhurst Dairy handed down on 13 March 2017, dubbed the ‘$10 million comma case’, highlights the importance of punctuation and the legal consequences that can flow on from getting it wrong.
For want of a nail, the kingdom was lost (or so the proverb tells us), and so it transpired. In the words of Judge David J Barron, ‘For want of a comma, we have this case’.
Three dairy-truck drivers sued Portland-based company Oakhurst Dairy in 2014 for four years of unpaid overtime wages. The findings of the Federal Appeals Court mean that Oakhurst Dairy potentially owes US$10 million (AUS$13 million) to 75 milk-truck drivers in the US State of Maine.
Relevant Maine state legislation provides that overtime payment rules do not apply to:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce
(2) Meat and fish products
(3) Perishable foods.
The case turned on the meaning of ‘packing for shipment or distribution of…’.
The lack of a serial comma, otherwise known as an Oxford comma, between the words ‘shipment’ and ‘or distribution’ meant that it could be read as ‘packing for shipment’ or ‘packing for distribution’, activities in which the milk-truck drivers did not engage.
In contrast, if the Oxford comma had been used, it would have been clear that the provision was also meant to cover ‘distribution’ simpliciter, something that the milk-truck drivers did engage in.
As the provision was remedial, the court decided that ambiguity should be resolved in favour of the workers whom the legislation was designed to protect, and that the provision did not cover distribution alone. In other words, the court decided that the provision only applied to ‘packing’ (whether for shipment or distribution).
Confusion in comma usage leading to court cases is not new. It happens in contracts as well as in statutes.
In 2006, Canada gave us the ‘$1 million dollar comma’ case. The case involved a contract dispute between cable TV company Rogers Communications and Bell Aliant. The case turned on whether Aliant could terminate within five years of the contract being signed. The relevant clause in the 14 page contract was:
Subject to the termination provisions of [the Agreement], [the Agreement] shall be effective from the date it is made, and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one (1) year prior notice in writing by either party.”
Rogers argued that the contract could only be terminated after five years. Aliant argued, based on grammatical rules of punctuation, that the right to terminate can be exercised at any time by giving one year’s notice. This was because the comma closed the clause ‘and thereafter for successive five (5) year terms’, and the subsequent qualifier ‘unless and until terminated by one year prior notice in writing by either party’ modified the preceding part.
The Canadian Radio Telecommunications Commission agreed with Alliant.
However, luckily for Rogers, on their producing the French language version of the contract, the Commission reversed its decision. The Commission decided http://www.crtc.gc.ca/eng/archive/2007/dt2007-75.htm that the French version resolved the ambiguity in the English version because there was only one possible interpretation for the French version.
The English language can be a confusing language, and no more so when it comes to the use of commas. What the cases show is that it pays for lawyers to be pedants at times. For those drafting, whether contracts or legislation, it is prudent to be conscious of the ambiguity the presence or absence of a comma can create. When in doubt, look at recasting the provision to avoid the comma issue.
Chris Reid | Special Counsel
Farhana Islam | Senior Associate