Lack of Commas Costs Company Millions in Dispute



The following recent news item hits to the heart of our mission at GrammarBook.com of educating our readers on the importance of communicating clearly through the use of good grammar and punctuation. Even though some of you may have seen or heard about this legal case, we felt strongly about reprinting it in this week’s e-newsletter. We are not surprised that such a significant court decision could result from unclear grammar or punctuation choices. In fact, we wonder why such problems don’t occur more often.

This specific case is an excellent illustration of why our Rule 1 of Commas recommends the use of the Oxford (or series) comma to separate words or word groups in a simple series of three or more items, because “omission of the Oxford comma can sometimes lead to misunderstandings.”

From The New York Times:

A class-action lawsuit about overtime pay for truck drivers hinged entirely on a debate that has bitterly divided friends, families and foes: the dreaded—or totally necessary—Oxford comma, perhaps the most polarizing of punctuation marks.

What ensued in the 1st U.S. Circuit Court of Appeals, and in a 29-page court decision handed down this week, was an exercise in high-stakes grammar pedantry that could cost a dairy company in Portland, Maine, an estimated $10 million.

In 2014, three truck drivers sued Oakhurst Dairy, seeking more than four years’ worth of overtime pay that they had been denied. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it carves out some exemptions.

A quick punctuation lesson before we proceed: In a list of three or more items—like “beans, potatoes and rice”—some people would put a comma after potatoes, and some would leave it out. A lot of people feel very, very strongly about it.

The debate over commas is often a pretty inconsequential one, but it was anything but for the truck drivers. Note the lack of Oxford comma—also known as the serial comma—in the following state law, which says overtime 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; and
(3) Perishable foods.

Does the law intend to exempt the distribution of the three categories that follow, or does it mean to exempt packing for the shipping or distribution of them?

Delivery drivers distribute perishable foods, but they don’t pack the boxes themselves. Whether the drivers were subject to a law that had denied them thousands of dollars a year depended entirely on how the sentence was read.

If there were a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. But the appeals court on Monday sided with the drivers, saying the absence of a comma produced enough uncertainty to rule in their favor. It reversed a lower court decision.

In other words: Oxford comma defenders won this round.

“That comma would have sunk our ship,” David G. Webbert, a lawyer who represented the drivers, said in an interview Wednesday.

The language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write “trailers, semitrailers, and pole trailers,” it says— instead, write “trailers, semitrailers and pole trailers.”

The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, “are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.”

“Use them thoughtfully and sparingly,” it cautions.

Most American news organizations tend to leave out the Oxford comma while allowing for exceptions to avoid confusion, like in the sentence: “I’d like to thank my parents, Mother Teresa and the pope.”

But the comma is common in book and academic publishing. The Chicago Manual of Style uses it, as does Oxford University Press style. “The last comma can serve to resolve ambiguity,” it says.

—Daniel Victor, The New York Times

Posted on Wednesday, March 29, 2017, at 8:48 am

15 Comments on Lack of Commas Costs Company Millions in Dispute

15 responses to “Lack of Commas Costs Company Millions in Dispute”

  1. Ian R A Brown says:

    I am British and live in the UK.

    I had always understood that the Oxford comma was a strictly US phenomenon where its use was very strict. In the UK it is rarely used at all in my experience (largely I believe because it has always been considered messy and apparently unnecessary).

    Might this Maine judgment affect a similar situation in the UK?

    My own take on the example above is that if it had been intended to read without the Oxford comma then it should have included an ‘and’. It should have read ‘… storing, and packing for shipment or distribution of:’

    • Use of the Oxford comma is not strict in the U.S., and that, in our opinion, is unfortunate. As we mention in our Rule 1 of Commas, “Most newspapers and magazines drop the Oxford comma …” and that “can sometimes lead to misunderstandings” as certainly happened in this case. That’s why GrammarBook recommends that the Oxford, or series, commas be used.

      Your suggestion does add clarification. Note that it does so by including the Oxford comma:
      The canning, processing, preserving, freezing, drying, marketing, storing, and packing for shipment or distribution of:

    • Chris says:

      I am also British, also live in the UK, and always use the Oxford comma.

  2. Barron Cole says:

    Putting aside the question whether a compete rewrite of this sentence would have been preferable, doesn’t this statute also violate Rule 5 of your “Effective Writing” guidelines: “Use consistent grammatical form when offering several ideas”?
    The introductory portion of the statute refers to cannING, processING, preservING, freezING, dryING, marketING, storING, and packING.
    If the last term had been “distributING,” then I think there would have been a much stronger case (with or without the Oxford comma) that distributing was a separate category.
    As it was, the statute refers to “shipment or distribution,” which appear both to be objects of the phrase “packing for.”

  3. Scott Taylor says:

    I have some questions. In your newsletter you wrote:
    “If there were a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. But the appeals court on Monday sided with the drivers, saying the absence of a comma produced enough uncertainty to rule in their favor. It reversed a lower court decision.”

    I would have written this as:
    “If there was a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. On Monday, the appeals court sided with the drivers and it reversed a lower court decision, saying the absence of a comma produced enough uncertainty to rule in their favor.”

    Why did you use “were” and not “was” when referring to a singular comma? Why start a sentence with “But” when it can clearly stand alone and in your paragraph the last sentence may not specifically refer to this case, the appeals court could have reversed a decision on another case entirely.

    The “Portland comma case” clearly shows how important such minor changes are in clearly expressing intent, yet I’d argue that your explanation could have been better worded. I’m just interested in knowing your reasoning.

    • The sentence beginning “If there were a comma … ” is an example of the subjunctive mood, which refers to the expression of a hypothetical, wishful, or imaginary thought. The subjunctive mood often pairs singular subjects with what we usually think of as plural verbs. See our post The Subjunctive Mood for more information.

      The Chicago Manual of Style
      has this to say about the word but:
      “Popular belief to the contrary, this conjunction usefully begins contrasting sentences, typically better than however.”

      Please note that the article was written by Daniel Victor of The New York Times.

  4. Roger E. says:

    Once, many years ago as a junior auditor with a major public accounting firm, I and another junior auditor were assigned to proof-read a draft document of some forgotten description. While the other auditor read his copy of document out loud to me, word for word, comma for comma, I read my copy of the document silently, listening intently for any variation between the two copies. At one point the other auditor read out loud a comma I did not find in my copy of the document. The difference was duly noted, and the two copies were returned to the responsible partner. I didn’t think much of the absence versus placement comma issue we’d identified, until the partner came to us and thanked us for identifying the small but legally significant difference between the two documents. Lesson learned – commas matter.

  5. Daniel S. says:

    What is the name of the case, regarding use of a comma, that was mentioned in the article?

  6. Richard S. says:

    I’m certainly on your side re: the oxford comma. Not only — I was taught that way and so it must be right. Since it is sometimes needed to resolve ambiguity, the lack of consistent use sets one up for a mistake like this.

    Maybe it’s also because of my math/computer background. “A or B or C” is not equivalent to “A or (B or C).” Precision required.

  7. G. Smith says:

    In the list should ; be followed by a small case or capital letter?
    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.

    • Please see our blog post Colons with Lists, where we note that there is some flexibility with tabular formats. The rule of thumb is to be consistent.

      That particular list was taken verbatim from the newspaper article covering the case. Though optional, we probably would not have capitalized “Agricultural,” “Meat,” and “Perishable,” and we would have used commas rather than semicolons.

  8. Alisande Cutler says:

    In the late Tom Stern’s column, he said, “Punctuation is a dying art. I’m not sure whether this is the writers’ or the readers’ fault, but I mostly blame the writers.”

    I blame the writers of advertising–especially of TV ads. They are filled with bad grammar and punctuation. How is any young person to resist the bombardment?

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