Oakhurst Dairy’s $5M Settlement Driven by Grammar Rules

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By John McCoy

Oakhurst Dairy agreed to pay $5 million to settle with 127 drivers who said the company didn’t properly compensate them for overtime work.

The settlement perhaps turned on a comma, or lack thereof. Back in March 2017, the U.S. Court of Appeals for the First Circuit reversed a trial court’s decision to dismiss the driver’s case. Maine law exempts overtime requirements for employees engaged in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: produce, meat and fish producers, and perishable foods.” The absence of a comma after “shipment” means “distribution” refers back to “packing” and therefore employees engaged in distribution aren’t exempted from overtime, the First Circuit concluded.

“That comma would’ve sunk our ship,” David G. Webbert, an attorney for the drivers, said at the time. Webbert is with Johnson, Webbert & Young in Augusta, Maine. Oakhurst employs 200 people and has annual sales of $110 million.

The resolution harkens back to other court battles in which punctuation played an outsize role in determining the outcome: decisions as recent as 2013 when AIG sued Bank of America, to the 1872 case that’s been called “the most expensive legislative typo in history.” In the latter, a misplaced comma in a tariff law cost U.S. taxpayers just over $2 million, which, adjusted for modern times would be approximately $38 million. In some cases, the impact is non-monetary but nonetheless substantial, such as the 2007 decision that overturned the District of Columbia gun ordinance.

For a somewhat arcane element of sentence structure, the Maine Legislative Drafting Manual has very specific instructions on how to handle the Oxford comma. The manual instructs lawmakers not to use the Oxford comma, further cautioning that it should be used “thoughtfully and sparingly.”

It’s no wonder that English majors the world over were enraptured by this grammatical proclamation. To further this matter’s syntactical bona fides, the First Circuit judge began his 3-0 opinion, “For want of a comma,” a subtle allusion to a 13th century proverb about causality and hindsight. Thoughtful and sparing indeed.

A federal court judge still has to sign off on the deal. If approved, Oakhurst will pay a total of $5 million to 127 drivers but admit no fault.

The case is O’Connor v. Oakhurst Dairy, D. Me., No. 2:14-cv-00192, motion for proposed class settlement 2/8/18.

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