You have a key to saving millions of dollars. It’s hiding in plain sight, right there on your keyboard. It’s the comma key. Striking it at the right time can save you or your client millions.
Don’t believe it? Consider these cases, with millions of dollars in the balance solely because of the absence of a single comma.
“For want of a comma, we have this case.”
With those words Judge David Barron opened O’Connor v. Oakhurst Dairy. He went on to rule that solely because of the absence of a comma in a Maine statute, Oakhurst Dairy was obligated to pay its drivers millions in back overtime pay. Oakhurst then settled the case by paying the drivers a cool $5 million.
How could a comma be worth $5 million? The statute provided an exception to the general rule requiring overtime pay. The exception was for
the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of … perishable foods.
26 M.R.S.A. § 664(3)(f).
The dispute was over the five words: “packing for shipment or distribution.” Oakhurst insisted that those five words denoted two separate activities: packing and distribution. That would mean no overtime for either activity.
In opposition, the drivers argued that the five words denoted a single activity: packing, whether for shipment or distribution. That would mean that distribution was not exempt from overtime, and of course, distribution consumes a lot of overtime.
The drivers’ position might be characterized as the serial, or Oxford, comma: A comma belongs in front of the and or or at the end of a list. For example, a list of fruits should read apples, oranges, and pears, not apples, oranges and pears. Therefore, if the legislature had intended that distribution was separate from shipment, the statute would have included a comma before or distribution.
Shortly after the case concluded, the legislature amended the statute to clarify the issue. The amendment showed that the legislative intent all along was consistent with the position of the dairy, not the drivers. Nevertheless, the ambiguity created by the missing comma in the original statute cost the dairy $5 million.
“The plaintiffs’ only argument … comes down to a comma.”
Those are the words of Judge Robert Scola in ECB USA, Inc. v. Chubb Insurance Company, a decision demonstrating that it’s not just a missing serial comma that can cause a rush to the courthouse and cost millions. Sometimes it’s the series-qualifier comma. Chubb found that out the hard way.
By failing to strike the comma key in an insurance policy, Chubb put $5 million at risk and was doomed to spend years in litigation, arguing for a position that would have been made unassailable by the presence of a single comma.
When a Chubb-insured accounting firm was sued by a former client for wrongdoing in an audit, the firm turned to Chubb for coverage. Chubb denied coverage. That was in 2017. The case moved from state court in Florida to federal district court in that state. The latter court issued an opinion in favor of Chubb, but not until the parties had spent four years in litigation.
The policy covered “management consulting services” defined as
“services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning for financial institutions.”
Chubb’s denial of coverage rested on the argument that the phrase for financial institutions qualified all the services in the preceding list. Because the audit client was not a financial institution, Chubb insisted, services for it were not covered.
Nonsense, the accounting firm responded, Chubb’s position is at odds with what the United States Supreme Court has called the series-qualifier canon, which holds that if a modifier is intended to qualify all the items in a list, it must be preceded by a comma. Otherwise, it qualifies only the last item. Therefore, the financial-institutions modifier applies only to strategy planning.
As the court observed, the firm’s only argument boiled down to a missing comma. But that single-comma argument was sufficient to keep the parties tied up in litigation for four years.
In December 2021, the court ruled in Chubb’s favor, while noting that “commas at the end of series can avoid ambiguity,” ambiguity that kept Chubb in court for four years.
My advice? Whenever there is a respectable argument for it, hit the comma key.
