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The ten million dollar comma

While some may consider the placing of a comma as an irrelevance, the case brought by a group of Oakhurst Dairy drivers against their employer would surely convince them otherwise!

The drivers claimed to be entitled to $10 million in overtime pay. Their claim hinged on the construction of Maine's overtime law, which entitles workers to overtime pay unless an exemption applies.

The exempted activities as stated are -

"The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

  • Agricultural produce;
  • Meat and fish products; and
  • Perishable foods."

Note the absence of a comma between "shipment" and "or.”

The drivers argued that the words "packing for shipment or distribution" referred to the single activity of "packing", whether for shipment or distribution.

They claimed they did not carry out any packing; they merely distributed the dairy's products. As a result, the drivers argued, the exemption did not apply to their activities, and they were due overtime pay.

Oakhurst Dairy argued that the disputed words actually refer to two distinct exempt activities, with the first being "packing for shipment", and the second being "distribution". It contended that because the delivery drivers do - quite obviously - engage in the distribution of dairy products, which are "perishable foods", the drivers fall within the exemption.

The judge sided with the drivers.

There would be no ambiguity, and Oakhurst Dairy might have won, had there been a comma between shipment and distribution: "The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of...."

But, as the judge opened: "For want of a comma, we have this case."

A lesson that it's all in the drafting!

Jody Mitchell

Aberdeen-based partner Jody Mitchell regularly advises clients on corporate, commercial and corporate or financial transactions. He handles work for corporate lenders and borrowers on a range of structured and general finance transactions.

Posted, 29 March 2017 by Jody Mitchell
Categories: Corporate