The Case of The Missing Comma

Kok Chee Kheong highlights a tale of caution for legal draftsmen.

The subject matter of this article is the case of O’Connor and Others v Oakhurst Dairy and Dairy Farmers of America (United States Court of Appeals for the First Circuit Case No.16-1901). The main issue is aptly summed up in the opening sentence of Judge Barron’s judgment where he said, “For want of a comma, we have this case.”
The comma in question was not the garden-variety comma, but rather, the Oxford comma.
As evident from its description, the Oxford comma originated from the renowned university town of Oxford in England. This being the case, it would be appropriate for us to seek an explanation as to the meaning of this punctuation mark from the venerable Oxford English Dictionary (“OED”).
The online edition of the OED describes the Oxford comma as “a comma used after the penultimate item in a list of three or more items, before ‘and’ or ‘or’”. The OED adds that the Oxford comma is a characteristic of the house style of the Oxford University Press, which incidentally is also the publisher of the OED.
We would add that the Oxford comma is also known as the Harvard comma or the serial comma, the latter not by reason of its rabid use, or abuse, but rather, describes its use in a series of items, hence a “serial comma.”
The first appellee is a producer of dairy products and is owned by the second appellee. The appellants are employed by the first appellee as delivery drivers for its dairy products.
The issue in dispute between the parties concerned the interpretation of Exemption F to section 664(3) of a piece of legislation known as Title 26 of the Maine Revised Statutes which regulates overtime law in that State (“Overtime Law”). Section 664(3) precludes an employer from requiring an employee to work more than 40 hours in any one week unless 1½ times the regular hourly rate is paid for all hours actually worked in excess of 40 hours in that week.
Section 664(3) is subject to various exceptions, one of which is Exemption F which, inter alia, states that the protection of the Overtime Law does not apply to the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of agricultural products, meat and fish products, and perishable goods.
The appellants had brought a claim in the District Court in Maine against the first appellee for unpaid overtime wages. They argued that they were protected by section 664(3) as they fell outside the categories of workers described in Exemption F. The first appellee disputed the claim, contending that the appellants fell within Exemption F and were not entitled to the protection under section 664(3) as the appellants, being delivery drivers, were involved in the distribution of perishable goods.
More precisely, the dispute turned on the meaning of the words “packing for shipment or distribution” in Exemption F. The appellants contended that, in combination, those words refer to a single activity of “packing”, whether for “shipment” or for “distribution.” The appellants acknowledged that they handled perishable goods but were not engaged in “packing” them. Hence, the appellants submitted that they fell outside Exemption F and were entitled to overtime payments at the rate prescribed in section 664(3).
The first appellee on the other hand said that the disputed words refer to two distinct exempt activities, one being “packing for shipment” and the other, being “distribution.” As the appellants were involved in the delivery of dairy products, which are perishable products, the first appellee submitted that the appellants fell within Exemption F and were not entitled to the protection of the Overtime Law.
The United States District Court for the District of Maine agreed with the argument by the first appellee that “distribution” was a stand-alone exempt activity and granted partial summary judgment in favour of the first appellee. The appellants appealed this ruling to the United States Court of Appeals for the First Circuit.
As observed by Judge Barron, both parties recognised that Exemption F raised questions as to its scope, largely due to the fact that no comma precedes the words “or distribution”. However, each party also contended that the exemption’s text had a latent clarity when various interpretive aids are applied. Some of the arguments raised by the parties are set out below.
The first appellee’s arguments
The first appellee referred to Harrington v State, 96 A.3d 696, 697-98 (Me. 2014) where the court stated that it was necessary to look beyond the statutory language only if the statute is reasonably susceptible to different interpretations. The first appellee contended that it was clear that Exemption F identifies “distribution” as a stand-alone, exempt activity rather than an activity that merely modifies the stand-alone exempt activity of “packing.”
The first appellee also relied on “the rule against surplusage” in Stromberg-Carlson Corp. v State Tax Assessor, 765 A.2d 566, 569 (Me. 2001), which instructs that independent meaning must be given to each word in a statute and that none must be treated as unnecessary. The first appellee contended that the words “shipment” and “distribution” are synonyms, and “distribution” cannot describe a type of “packing” as the word “distribution” would then redundantly perform the role that “shipment” – as its synonym – already performs. The first appellee submitted that the first word, “shipment” described the exempt activity of “packing”, i.e. “packing for shipment” while the second, “distribution”, describes an exempt activity in its own right.
The first appellee also relied on the Maine Legislative Drafting Manual @ 113 (Legislative Council, Maine State Legislature 2009) (“Drafting Manual”) which expressly instructs that: “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.” While acknowledging that the Drafting Manual was published after the Overtime Law was passed, the first appellee referred to various laws to show that Maine statutes invariably omit the serial comma from its lists.
The appellants’ arguments
The appellants contended that the inclusion of both “shipment” and “distribution” to describe “packing” did not give rise to redundancy. They contended that “shipment” refers to the outsourcing of the delivery of goods to a third-party carrier whereas “distribution” refers to a seller’s in-house transportation of products directly to recipients. The appellants cited the New Oxford English American Dictionary and Webster’s Third New International Dictionary in support of its contention. They also cited section 1476 of another Maine statute, 10 M.R.S.A., which used both terms as if each represented a separate activity in its own right, i.e. “manufacture, distribution or shipment.”
To rebut the first appellee’s contention that the Drafting Manual instructs against the use of the serial or Oxford comma, the appellants highlighted that the Drafting Manual @ 114 provided for various exceptions including several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.
The decision of the Court of Appeals
The Court of Appeals was not convinced by the arguments put forward by both parties. “And so - - there being no comma to break the tie – the text turns out to be no clearer on close inspection than it first appeared” observed Judge Barron. However, the Judge added, “We are not, however, without a means of moving forward.”
The Judge then referred to Dir. of Bureau of Labor Standards v Cormier, 527 A.2d 1297, 1300 (Me. 1987), and said, “The default rule of construction under Maine law for ambiguous provisions in the state’s wage and hour laws is that they “should be liberally construed to further the beneficent purposes for which they are enacted.””
Judge Barron noted that the opening of the subchapter of the Overtime Law states a clear legislative purpose: “It is declared public policy of the State of Maine that workers employed in any occupation should receive wages sufficient to provide adequate maintenance … and to be fairly commensurate with the value of the services rendered” (section 661 of 26 M.S.R.A,).
Thus, the Court held that in accordance with Cormier, the ambiguity in Exemption F must be interpreted in light of the remedial purpose of the Overtime Law. When doing so, the Court ruled that the ambiguity clearly favours the appellants’ narrower reading of the exemption and furthers the broad remedial purpose of the Overtime Law, which is to provide overtime pay protection to employees. 
Given that the appellants engaged in neither packing for shipment nor packing for distribution, the Court ruled that the appellants fell outside the scope of Exemption F and were entitled to the protection of the Overtime Law. Accordingly, the Court of Appeals reversed the partial summary judgment granted in favour of the first appellee by the District Court.
This case is not the first where the outcome turned on a missing comma. In all probability, neither will it be the last. Nevertheless, it is a timely reminder to legislative draftsmen and lawyers of the importance of exercising care when drafting. Having said that, the Oxford comma is not a silver bullet which cures all ills of (or by) draftsmen and lawyers. It is to be used with forethought in order to avoid ambiguity.