The Comma That Went to Court

A sentence in Maine’s overtime law once ended like this: “packing for shipment or distribution.” The missing mark sat between shipment and or. It was a comma small enough to disappear in a breath, but large enough to decide whether a group of dairy-truck drivers could claim overtime.

In 2017, the United States Court of Appeals for the First Circuit opened its opinion with a line that sounds like a joke and reads like a warning: “For want of a comma, we have this case.” The case was O’Connor v. Oakhurst Dairy. Its eventual settlement was $5 million.

The famous version of the story says that an Oxford comma made or lost the money. That is not quite what happened. The comma did not mechanically decide the case. It made the sentence ambiguous, and ambiguity handed the court a different kind of power: the power to choose which reading best served the law’s purpose.

Five words, two jobs

Maine law required an employer to pay one and a half times the regular hourly rate for hours worked beyond 40 in a week. It also created exemptions for certain kinds of work involving perishable food. The relevant list began with canning, processing, preserving, freezing, drying, marketing, and storing. Then came the disputed tail: “packing for shipment or distribution.”

The dairy’s delivery drivers distributed milk and other perishable products. They said they did not pack those products. Their reading treated the final words as one activity: packing for shipment or distribution. In ordinary language, that means packing goods for either destination. Distribution by itself is not on the list.

Oakhurst Dairy read the same words as two activities: packing for shipment and distribution. Under that reading, distribution was a separate exempt job. The drivers were plainly distributors, so they fell outside the overtime protection.

The lower court accepted Oakhurst’s interpretation and granted summary judgment. The First Circuit reversed. It did not declare that the Oxford comma is always necessary, or that punctuation alone determines legal meaning. It examined the whole sentence and found that neither side had made the text unambiguously theirs.

That distinction matters. The comma was not a tiny judge issuing a verdict. It was a missing road sign at a fork.

The case against the missing mark

Oakhurst had a serious argument. The phrase “shipment or distribution” could be read as naming two destinations or two kinds of work. If distribution merely described the purpose of packing, the dairy argued, it added little to shipment. Legal interpretation generally resists treating words as surplusage. Every word is supposed to do some work.

The structure of the statute seemed to help the dairy too. Other lists in the overtime provision used a conjunction before their final item. Maine’s own Legislative Drafting Manual advised lawmakers not to use a comma between the penultimate and final items in a series. Omitting the comma was not a typographical accident. It was part of the state’s drafting convention.

The drivers had counterarguments that reached beyond the comma. Every other activity in the list appeared in the same grammatical form: canning, processing, preserving, freezing, drying, marketing, storing, packing. Distribution was a noun, not an -ing form. If it were meant to be a final, stand-alone activity, the list’s grammar suggested that the legislature might have written distributing instead.

The statute’s history also cut both ways. An earlier version of the law had used language that more clearly separated packing products for shipment from distributing them. The later wording removed a preposition and changed a verb into a noun. Oakhurst treated the revision as evidence that distribution remained independently exempt. The drivers saw it as a new source of uncertainty.

The First Circuit went through these arguments, along with the law’s purpose and related Maine decisions. Its conclusion was restrained: the exemption was ambiguous. That did not mean the judges had failed to find the answer. It meant the text, considered with its grammar, history, drafting habits, and purpose, could support more than one answer.

When ambiguity meets a purpose

Once the sentence stopped being clear, Maine’s rule for interpreting wage-and-hour laws became decisive. The First Circuit cited the state’s instruction that remedial statutes should be liberally construed to further the purposes for which they were enacted. The purpose here was to provide overtime protection to employees.

That principle favored the drivers’ narrower reading. An exemption removes workers from a protection that would otherwise apply. If the law is unclear about whether distribution is a separate exemption, the interpretation that preserves overtime coverage better serves the protective purpose of the statute.

The court therefore did not award a comma its own legal personality. It used the uncertainty exposed by the comma’s absence, then applied a rule about whom the overtime law was designed to protect. The famous punctuation was the visible hinge. The deeper machinery was statutory interpretation: text first, then structure, history, and purpose when text runs out.

The case went back to the district court. The litigation did not end with a final trial verdict about every driver’s hours. In 2018, the district court approved a class settlement covering 122 people. The total was $5 million, more than 90 percent of the plaintiffs’ claimed overtime damages of $5,452,686.93. The five named plaintiffs received service awards, while the rest of the class was paid from the settlement fund. Oakhurst admitted no wrongdoing as part of the agreement.

So the popular number is real, but its meaning needs care. The comma did not directly cost a company $5 million. A disputed sentence kept a lawsuit alive; the appellate ruling changed the parties’ bargaining positions; and a settlement converted the risk of further litigation into a payment.

The repair uses no Oxford comma

Maine did not respond by simply inserting the punctuation mark that made the story famous. The current version of the statute separates the activities with semicolons and ends the sequence with “or distributing”: “The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of” the listed foods.

The repair does two jobs at once. The semicolons make each activity stand apart. The change from distribution to distributing restores the grammatical pattern of the list. The state kept its preference against the serial comma and solved the problem by making the sentence harder to misread.

This is the part of the story worth carrying away. Precision is not the same as obedience to a style rule. A drafting manual can sensibly discourage a punctuation habit across thousands of statutes, yet a blanket rule can still produce a sentence whose meaning depends on a reader guessing where one phrase ends and another begins. Good legal writing is not a contest between comma factions. It is an effort to leave as little interpretive work as possible for the person who comes later, when money, freedom, or a working week may be attached to the words.

A comma is small. A law is made of small things. The danger begins when the people writing the sentence know what they meant and forget that the sentence must survive without them.