Byte of Prevention Blog

by Jay Reeves |

Missing Oxford Comma Leads to Million Dollar Recovery

In the epic and endless debate over the propriety of the Oxford comma, chalk this one up as a Big Win for punctuation people.

The absence of an Oxford comma was the deciding factor in a $5 million settlement of a federal lawsuit in Maine.

The otherwise mundane case – which involved the interpretation of Maine’s overtime compensation statute – made national news, including breathless coverage by The New York Times:

“Ending a case that electrified punctuation pedants, grammar goons and comma connoisseurs, Oakhurst Dairy settled an overtime dispute with its drivers that hinged entirely on the lack of an Oxford comma in state law,” wrote Daniel Victor in the Times. “The relatively small-scale dispute gained international notoriety last year when the United States Court of Appeals for the First Circuit ruled that the missing comma created enough uncertainty to side with the drivers, granting those who love the Oxford comma a chance to run a victory lap across the internet.”

For you non-grammarians, the Oxford comma is the comma placed before the last item in a series of three or more items (“red, white, and blue”). So named because it was favored by Oxford University Press, its proponents say it helps avoid ambiguity. But in modern usage, including the NY Times Stylebook, the Oxford comma is typically discouraged.

Is it One Exemption or Two?

You might think there are weightier matters to worry about than a little bitty comma. Just try telling that to the litigants in O’Connor v. Oakhurst Dairy (U.S. Court of Appeals, First Circuit 16-1901), where victory and defeat hung in the balance.

As writer, editor and Oxford-comma lover Kelly Gurnett says on The Write Life: “For anyone who’s ever wondered what all the fuss is about, the circuit judge’s opinion says it all: ‘For want of a comma, we have this case.’”

The matter arose in 2014, when three truck drivers sued the dairy for several years of unpaid overtime. Under Maine law, workers get time-and-a-half pay for each hour over 40 per week. But a statutory exemption – with the key language highlighted – reads as follows:

“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 drivers said without the Oxford comma, the statute excluded only packing — whether it was for shipment or distribution. The dairy argued the spirit of the law intended “packing for shipment” and “distribution” to be two separate exempted activities.

The appellate court thrashed around in the legislative history before basing its ruling on the missing comma.

“[I]f 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] the drivers would plainly fall within the exemption and thus outside the overtime law;s protection,” the court said, reversing summary judgment in favor of the dairy. “But, as it happens, there is no serial comma to be found.”

Mixed Reactions

“As a diehard Oxford comma loyalist, this ruling made my day,” Gurnett exulted. “While many of the sites I write for as a freelance blogger follow AP style, which is sans-serial comma, I still sneak one in when it seems needed to avoid potential confusion. This case backs up that habit as more than just an old-school tic I haven’t yet let go.”

But the Times was somewhat less thrilled with the settlement:

“The resolution means there will be no ruling from the land’s highest courts on whether the Oxford comma is an unnecessary nuisance or a sacred defender of clarity, as its fans and detractors endlessly debate.”

What do you say? Comma, or no comma?

About the Author

Jay Reeves

jay.reeves@ymail.com | 919-619-2441

Jay Reeves practiced law in North Carolina and South Carolina. Over the course of his 35-year career he was a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms put more mojo in their practice through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations.

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