The Missing Comma- and what it can cost you !

Sometime ago I wrote about the importance of precise and correct drafting, including correct usage of words.

You can find that article at :

https://lawforall.in/legal-drafting/

Or via LinkedIn at:

https://www.linkedin.com/pulse/legal-drafting-hardeep-sodhi/

Found an example of what imprecise drafting can lead to.

Here , a missing comma cost a company about US Dollars Five Million !!

The case is an example of an ‘Oxford Comma’. So , firstly what is an ‘Oxford Comma’ ? It is a comma that precedes “and” or “or” in a list of three or more words in a sentence. For instance, here is a sentence that uses one:
I have some oranges, bananas, and mangoes.

And a sentence not using one may be:
He went to the movie with his friends, Rajesh and Krishnan.

The latter may be interpreted as the friends were named Rajesh and Krishnan. Or, that there were three entities : friends, Rajesh , and Krishnan.

Mostly , this is harmless. Except when you are talking contracts – and lawyers 🙂

A suit was filed in 2014 by five truck drivers employed by Okahurst Dairy in Maine USA. They claimed unpaid overtime pay. The company, standing behind Maine’s labor laws , claimed drivers were not eligible for overtime pay.
Maine’s labor laws allow that anyone working for more than 40 hours gets overtime at the rate of 1.5 times normal wages. Except for certain exemptions.
Summarily put, relevant portion of the law states that the following activities do NOT qualify for overtime pay :
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

  1. Agricultural produce;
  2. Meat and fish product; and
  3. Perishable foods

The drivers distribute perishable food, but don’t pack it. The Company argued that there are two distinct activities that are exempt from overtime pay : packing for shipment, and distribution. So, distribution is an exempt activity not qualifying for overtime.

However, the drivers argued that since  “packing for shipment” and “distribution” were not separated by a comma, that made them a single activity of packing either for shipment or for distribution.And since drivers distribute, they are outside this exemption and so qualify for overtime.

A 2017 ruling agreed with the drivers, sending the case back to the federal District Court and opening the door to the settlement the company filed in Feb. 2018. Under the terms of the agreement, the five “named” plaintiffs (those who led the suit) will each receive $50,000. Any of the approximately 127 drivers involved who file claims will receive a minimum of $100 or the amount of overtime pay owed from between May 2008 and August 2012.

So, words matter. And so does even punctuation !

For clarity, the law has since been edited and now reads :

 F.  The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:                                                                                                                                       (1)  Agricultural produce;                                                                                                                                               (2)  Meat and fish products; and                                                                                                                                               (3)  Perishable foods.                             

And you can find the actual ruling at :

https://cases.justia.com/federal/appellate-courts/ca1/16-1901/16-1901-2017-03-13.pdf?ts=1489437006

Thoughts ? More examples ? Feel free to comment in !

PS : BTW, if you have read this far, correct word in image above should be ‘losing’ not ‘loosing’ ! Let me know if you caught on early by commenting hereunder :-))

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