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The Missing Comma That Cost a Company $10 Million

If you think punctuation isn’t important, you might want to rethink that attitude. Or ask Oakhurst Dairy of Portland, ME, how they are currently looking at the punctuation element known as the Oxford comma.

What is the Oxford comma?

Also known as the serial comma, it’s placed between the last two items in a series of three or more. An example would be: His favorite foods were pizza, ice cream, and potato chips.

Here’s an example of how the absence of an Oxford comma causes confusion.

“Among those interviewed were Merle Haggard’s two ex-wives, Kris Kristofferson and Robert Duvall.”

Proponents of the Oxford comma say it’s necessary to avoid potential ambiguity. It obviously also helps to avoid costly settlements.

How A Missing Oxford Comma Caused a Lawsuit

It all started in 2014. Three truck drivers sued the dairy with a claim that they’d been denied four years’ worth of overtime pay. According to Maine law, workers are required to get time-and-a-half pay for each hour worked after 40 hours, with these 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 foods.

The key to the dispute was the phrase “packing for shipment or distribution of.” The court ruled that the lack of a comma between “shipment” and “or” made it unclear whether the law exempted the distribution of the three categories that followed, or if it exempted packing for the shipment or distribution of them.

The dairy company claimed that the drivers did not qualify for overtime because they engaged in distribution. It argued that the spirit of the law intended to list “packing for shipment” and “distribution” as two separate exempt activities.

The drivers stuck to the letter of the law, which said no such thing. Lacking the Oxford comma, one could read the law to exclude only packing — whether it was packing for shipment or packing for distribution. Distribution by itself, in this case, would not be exempt.

The judge who decided the case agreed with the drivers.

“Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

The lawyer who represented the drivers, said: “That comma would have sunk our ship.”

In February, 2018, Oakhurst Dairy agreed to pay $10 million to the drivers, according to court documents.

What Do You Think About Punctuation Now?

I haven’t been able to find who first discovered that the $10 million comma was missing. As a committed member of the Grammar Patrol, I applaud his or her genius.

Grammar nerds around the world rejoiced over this victory. Maine legislators immediately reworded several laws. It would not surprise me to learn that many lawyers are carefully examining a multitude of legal documents, looking for an opportunity.

Let this be a lesson: Punctuation matters.

Pat Iyer is one of the original 100 C Suite Network Contributors. As a ghostwriter and editor, she helps her clients shine. Connect with her on patiyer.com and listen to her podcast on the C Suite Radio platform: Writing to Get Business.

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