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For Want Of A Comma, The Lawsuit Was Lost

Oakhurst Dairy headquarters, exterior
photo by John Phelan

When people find out that a large part of my day-to-day job involves copy editing, a lot of them immediately assume I’m a grammar snob.

I plead not guilty to this charge. For one thing, no one who commits as many text message typos as I do could hold onto the snob title for very long. But of the grammar snobs I know, I can’t think of one of them who edits for a living. I suspect that this is because if you edit for any length of time, you learn to spot the difference between enabling better communication and following arcane rules for arcane rules’ sake.

Consider the serial, or Oxford, comma. Put simply, the serial comma is a comma that appears between the second-to-last item in a list and the coordinating conjunction before the final item. For instance, “Sarah, Beth, and Alison came to my party” as opposed to “Sarah, Beth and Alison came to my party.” Unless you write a style guide or regularly use one, this probably seems like a minor point. But plenty of people have a strong preference for either using or avoiding the serial comma, and sometimes they express those preferences forcefully.

McSweeney’s recently reimagined a version of Dante’s “Inferno” for grammar, and the second circle is devoted to those stuck in an endless argument over the serial comma: “Neither side will listen to you when you suggest that they could avoid this level entirely.” (Don’t get too comfortable, grammar snobs. The eighth circle is for “needless correctors.”) Granted, I have my own serial comma preferences. I was even an early member of the Facebook group “Oxford commas are the new black,” though for the record, Facebook groups were a relatively casual affair back in 2004. But while there’s a time and place for precision, most of the time this just isn’t a big deal.

Unfortunately for Oakhurst Dairy, one of the times precision truly is crucial is in matters of law.

The case in question began in 2014, but came to wider attention last year when an appeals court ruled against the Portland, Maine dairy in a labor dispute with its drivers that largely hinged on a serial comma – or, more accurately, its absence. Earlier this month, the company settled with its drivers for $5 million.

The drivers had sued Oakhurst Dairy for unpaid overtime and lost wages, citing Maine’s overtime laws. As written, the law specifies certain activities that do not qualify for overtime: “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 argued that “packing for shipment or distribution” was a single activity, not two separate ones. (Using what Quartz called an “impressively geeky” piece of logic, the drivers noted that all the other exempted activities were listed as gerunds, or words ending in “-ing,” as a means of strengthening their argument.) Since the drivers distributed, but did not pack, the products in question, they should receive overtime pay if their reading of the law was correct. If lawmakers had included a comma after the word “shipment,” the drivers could not have plausibly made this argument. As it is, the law left them an opening.

As Judge David Barron put it in the 2017 appeals court ruling, “For want of a comma, we have this case.” Barron argued that the resulting ambiguity “must be construed liberally,” and the three-judge appeals panel unanimously ruled in the drivers’ favor.

Maine has since revised the law to make clear that packing and distributing are separate entries in this list, though legislators skipped over the serial comma and went straight for a list separated with semicolons. This strikes me as grammatical overkill, but I don’t write the laws in Maine. The more important issue is that lawmakers have removed the unintended ambiguity.

Here at Palisades Hudson, we generally rely on the Associated Press Stylebook, which means you won’t see many serial commas on our website or other published writing. But even the venerable AP instructs us to “Include a final comma in a simple series if omitting it could make the meaning unclear.” Maine’s legislative style guide, too, instructs writers generally to omit the serial comma, but points out the need for care when a list includes phrases or words with modifiers. This case is an instance that proves clear communication should always be the highest consideration when applying a rule.

Because the case was settled, we are left without a ruling from the high court about whether Oxford-comma lovers are truly vindicated after all. But the Maine Legislature is likely to keep its i’s dotted, its t’s crossed and its list items firmly separated by semicolons from now on.

Administrative Manager Amy Laburda, who is based in our Stamford, Connecticut office, is the editor of the firm’s most recent book, The High Achiever’s Guide To Wealth, as well as the co-author of two of its chapters. She was also the co-editor of our firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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