Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands

Aristophanes of Byzantium would be rolling in his grave!

Looseness of grammar leads to looseness of language; looseness of language leads to looseness of thought; looseness of thought leads to self-deception; and self-deception leads to disaster.” (Anon.)

In the recent US case of O'Connor v. Oakhurst Dairy, the lack of a single comma led to a 5 million dollar pay-out by the defendant. The case, a class-action lawsuit against Oakhurst Dairy (owned by a national cooperative, Dairy Farmers of America Inc.) in the state of Maine, involved drivers of Oakhurst Dairy who claimed they were owed years of unpaid overtime wages, due to the way in which the commas were used in the state legislation governing overtime payments. Maine’s labour laws state that anyone who works more than 40 hours a week is entitled to 1.5X pay, except for certain exemptions. The relevant exemptions being workers involved in:

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.

At first glance nothing in this seems out of place and it looks very straight forward. However, the drivers argued that since “packing for shipment” and “distribution” were not separated by an Oxford comma that made them a single activity. The drivers further argued that while they did indeed “distribute” perishable food, they did not “pack” it, which meant that they were not exempted, and that they should accordingly be paid, overtime pay. A Maine federal court had initially ruled that the drivers were not entitled to overtime under state law. The drivers appealed to the First Circuit Court of Appeals in Boston.

A three-judge appeals panel heard the case, and Judge Barron opened his 29-page ruling by saying, “For want of a comma, we have this case.” The court ruled that it was not clear whether the law exempted the distribution of the three categories that followed, or if it exempted “packing” for the shipment or the “distribution” of them. Therefore, had there been a comma after “shipment,” the meaning would have been clear. However, as it was not, the court concluded that the lack of a comma made the language ambiguous, and that the ambiguity “must be construed liberally.” The judges were unanimous in taking the side of the drivers. Oakhurst Dairy accordingly had to pay $5 million to compensate the drivers for unpaid overtime.

The case serves as a caution against careless drafting and that the slightest misstep in punctuation can have serious unintended consequences. Attention to punctuation is not merely pedantry, and rather poetically, the clarity provided by the correct use of the comma was described by E.B. White tellingly in the following terms, “Commas… fall with the precision of knives in a circus act, outlining their victim.”

Aristophanes of Byzantium would be rolling in his grave!

Leave A Comment