If you tend to leave contract drafting and review to your lawyers, you might think twice about doing so in the future. While learning how to write a contract may not sound like fun, leaving the job to someone else could work against you. For proof, just look at this example of a legal dispute that blew up over a comma—or, rather, the lack thereof.
In 2014, the New York Times reports, five truck drivers sued Portland, Maine’s Oakhurst Dairy on behalf of about 127 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?
Deciding how to write a contract? Don’t overlook the details.
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) 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. At the time, the Maine Legislative Drafting Manual instructed lawmakers not to use the Oxford comma.
The case was eventually settled for around $5 million, with $50,000 going to each of the five drivers who initiated the suit and the remaining drivers “will be paid a minimum of $100 or the amount of overtime pay they were owed, based on their work records,” according to the Portland Press Herald.
“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.
Incidentally, the Maine legislature did review the law and updated it for clarity. The law was rewritten and now includes… semicolons!
In thinking about how to write a contract, do you think you would notice the type of ambiguity written into the Maine law?