Banking and Business Monthly – April 2017


The following case has been widely publicized, but perhaps you may not yet have heard about it. In any event, it has an important lesson for all of us about using precise language and grammar in drafting contracts. In March of 2017, the United States Court of Appeals for the First Circuit weighed in on arguably the largest grammatical debate in existence – should one use the Oxford (serial) comma? O’Connor v. Oakhurst Dairy, 2017 U.S. App. 4392 (1st Dist. 2017). The facts of O’Connor are relatively straightforward; four employees sued their employer for unpaid overtime wages. The employer, Oakhurst Dairy, argued that the employees were excluded under Maine’s overtime statute because, as delivery drivers of perishable foods, they fell into the following statutory exemption: “[t]he 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.” O’Connor, 2017 U.S. App. 4392, at 3; quoting 26 M.R.S.A. § 664(3)(F) (emphasis added).

The employees argued that “packing for shipment or distribution” does not include them because they are delivery drivers and not packers and the phrase should be read as one item on the list. Id. The employer argued that the two parts of the phrase should be read separately and as a part of the preceding list so as to mean that those engaged in packing for shipment and those engaged in distribution would be two separate classes of employees which are exempt from overtime. Id. at 4. All parties seemed to have agreed that had there been a comma after “shipment,” the statute would be unambiguous and the employees would be exempt from overtime. Id. at 9.

The employer argued that the legislature meant to not include the comma but still meant to encompass “packing for shipment or distribution” as two parts of its list because of Maine’s legislative drafting Manual which states that the legislature should not “use a comma between the penultimate and the last item of a series.” Id. at 10. The employees responded with other linguistic and statutory cannons of interpretation that supported their interpretation that the two were meant to be read together. Id. at 15. In the end, the court found both arguments equally (un)persuasive and noted an ambiguity not only in the text but also in the legislative intent behind the specific portion of the statute. Id. As a result, the court decided to interpret the statute narrowly in an attempt to further the legislature’s overall purpose of ensuring “that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.” Id. at 23.

Thus, had the Maine legislature used the Oxford comma in the statute, it would have ceased this litigation in its tracks and Oakhurst Dairy would not have been liable for roughly $10 million in unpaid overtime wages to its employees. As a practical matter, and the lesson to keep in mind for drafting your contracts, is that courts generally use the same cannons of construction to interpret private contracts, and so this case illustrates the importance of the Oxford comma in clarifying a list’s content and purpose. In deciding whether or not to use the Oxford comma in a list of items within your contract, consider your intended meaning and draft accordingly.

Steven A. Migala is a partner at Lavelle Law and possesses over 20 years of providing excellent representation to banks, businesses and individuals in a variety of matters. He can be contacted at (847) 705-7555 and