Contracts, Confusion, and the Oxford Comma

The importance of reviewing the fine print

By PON Staffon / Dispute Resolution

If you’ve tended to leave contract drafting and review to your lawyers in the past, you might think twice about doing so in the future after reading about a legal dispute that blew up over a comma—or, rather, the lack thereof.

In 2014, the New York Times reports, three truck drivers sued Portland, Maine’s Oakhurst Dairy on behalf of about 75 drivers. Citing a Maine state law, the drivers accused Oakhurst of unfairly denying them overtime pay for four years. The dairy disagreed, citing the same Maine law.

The law stipulates that 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.” At issue was whether or not a comma was implied after the word “shipment” in the passage. Did the law exempt from overtime packing for shipping or distribution of the products listed, or the distribution of the products as well?

The answer to this question mattered, as the drivers distributed perishable foods but didn’t personally pack them. And it hinged on the lack of a so-called Oxford comma after “shipment.”

In a list of three or more items, such as “produce, products and foods,” some presses and style guides (including Oxford University Press and The Chicago Manual of Style, which Negotiation Briefings follows) favor adding a comma after the word “products” to clear up potential confusion and maintain consistency, while others (such as the Times and the Associated Press) say the final comma is unnecessary in this and most cases.

The drivers argued that the lack of a comma after “shipment” in the law meant that only packing, and not distribution, was exempt from Maine’s overtime rules. A U.S. appeals court agreed, saying that the absence of a comma provided enough uncertainty to rule in the drivers’ favor. The Maine Legislative Drafting Manual instructs lawmakers not to use the Oxford comma.

“That comma would have sunk our ship,” David G. Webbert, a lawyer for the drivers, told the Times, while also conceding that the sentence was unclear. Oakhurst Dairy’s president indicated it planned to appeal the case.

When reviewing a contract draft, do you think you would notice the type of ambiguity written into the Maine law? If not, you might want to start reading the fine print more closely.