Take a breath

UNDER SUBMISSION

Sometimes we come across a mistake in a pleading or document, and we know that the mistake is, shall we say, unmistakable, obviously inadvertent or a typo. Courts on occasion have been known to use commonsense and not allow an adverse party to profit by such a mistake. For example, when a recurring clause in a contract refers to the consideration as "$600,000," and one clause reads "$6,000,000," courts will use what I call the "give me a break" test and not allow a party to profit by another party's blunder where there is no prejudice. Even when the mistake is not obvious to a reader unfamiliar with the facts of a case, when appropriate, the court will write an opinion that does not permit an adversary to reap the benefits of a gaffe from the opposing side.

In Afewerki v. Anaya Law Group, 868 F.3d 771 (2017), a creditor sued a debtor in state court for an amount that was $3,000 more than the amount owed and with an interest rate that was 0.315 percent too high. The debtor sued the debt collection lawyers and the creditor in federal court for the false representation of the amount due, alleging a violation of the Federal Fair Debt Collection Practices Act and California's Rosenthal Fair Debt Collection Practices Act.

The district court granted summary judgment to the defendant creditor and the debt collection lawyers on the ground that the errors were not material. The 9th Circuit disagreed with the district court's reasoning that the errors were immaterial, but nevertheless affirmed because the errors were inadvertent and cured within the two-week time limit of the federal act.

The Afewerki court acknowledged that no California case has decided whether such an error that is cured promptly is nevertheless a violation of the state Rosenthal Act. But it reasoned that with the speedy cure of the violation, California would likely conclude the creditor and its lawyers are not liable. This is a reasonable result. The debtor is not being sued for money he does not owe. But he did have to hire an attorney to straighten things out after a default judgment was entered against him. Strict adherence to statutory language is often required, but not in every instance. That's why we have courts.

So what about mistakes in punctuation or, more specifically, commas? I recall some grammarians and style manuals admonish not to use a comma before "and" or "or" in a series: "The opinion was tedious, boring, soporific and incomprehensible." Susan Wessling, the New York Times senior editor for editing standards, says, "A goal of punctuation is to make a sentence as clear as possible, and in most cases that final comma isn't necessary for understanding the relationship of all items in a series."

I am glad she said "in most cases." In the April 2014 edition of the American Scholar, the editors picked what they considered the 10 best sentences in literature. The one they picked from Jane Austin's "Pride and Prejudice" reads, "For what do we live, but to make sport of our neighbors, and laugh at them in turn?" And take a look at O'Connor v. Oakhurst Dairy, 851 F.3d 69 (2017).

O'Connor's opening paragraph explains: "For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. 26 M.R.S.A. § 664(3). Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not."

The clause in question, "Exemption F," concerns which employees are exempt from receiving overtime pay. The clause states that overtime law does not apply to employees who perform "[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of" certain food products. The reader who has not fallen asleep yet will note that the drafters of the statute followed the rule about omitting the final comma. The court goes on to say, "Each party recognizes that, by its bare terms, Exemption F raises questions as to its scope, largely due to the fact that no comma precedes the words 'or distribution.'" (O'Connor, p. 72.)

That is why the delivery workers contend they are entitled to overtime pay and are not exempt. Though true that delivery drivers distribute the food products, they do not pack them. If they were to be excluded, the clause in question would have had a comma after the word "shipment," and would have read that the overtime exemption applies to employees whose work involves the "packing for shipment, or distribution of" certain food products.

If that had been the case, the opinion would have been a lot shorter. But in a lengthy opinion the court drew upon legislative intent. It concluded that despite the absence of a comma, the drivers were eligible for overtime pay and were not exempt employees. I almost fell into a coma reading the tedious opinion about the "missing" comma.

Guess what? An amendment to the Maine statute now reads that the overtime provision does not apply to employees who are involved in "[t]he canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of" various food products. Notice the semi-colons, not mere commas. And I have it on good authority that our stalwart Reporter of Decisions Lawrence Striley prefers the serial comma. He told me so.

Wonder how the drivers are responding to the amended statute. So much for what the court thinks the legislature meant. I recall the great Justice Holmes said something like, "I do not care what the legislature meant; what did it say?" My judicial assistant Bonnie Edwards insisted I correctly quote Justice Holmes: "We do not inquire what the legislature meant; we ask only what the statute means." More eloquent.

A few weeks ago, I discussed with my friend, attorney John Blumberg, what I vaguely recalled were the facts of the O'Connor case. I had forgotten the case name and asked him if he had the cite handy. Instead, he sent me the following paragraph as an example of what courts think about punctuation.

The court's reliance on the comma is misplaced. "[P]unctuation is not decisive of the construction of a statute." (Costanzo v. Tillinghast, 287 U.S. 341, 344 (1932); see also Barrett v. Van Pelt, 268 U.S. 85, 91 (1925) ["'Punctuation is a minor, and not a controlling, element in interpretation, and courts will disregard the punctuation of a statute, or re-punctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning'"]; Lessee of Ewing v. Burnet, 36 U.S. 41, 54 (1837) ["Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the Court will first take the instrument by its four corners, in order to ascertain its true meaning: if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it"].) Under this rule of construction, the court has not hesitated in the past to change or ignore the punctuation in legislation in order to effectuate congressional intent. (See, e.g., Simpson v. U.S., 435 U.S. 6, 11, fn. 6 (1978) [ignoring punctuation and conjunction so that qualifying phrase would modify antecedent followed by comma and the word "or"]; Stephens v. Cherokee Nation, 174 U.S. 445, 479-480 (1899) [ignoring punctuation so that qualifying phrase would restrict antecedent set off by commas and followed by the word "and"].)

This all goes to show that law can never be certain because language and its partner, grammar, seldom provide certainty. Ambiguity is the lifeblood of the courts. Without it we in the legal profession would be out of work.

In the September 2017 edition of The Economist, an article titled "Comma Chameleon" mentions the comma dilemma that occurred in the O'Connor case. One sentence in the article demonstrates how I treat commas. "The comma, however, was originally intended not as a grammatical mark, but a place to pause for a breath."

That is how I use commas. And to you dear reader who read this entire column, I advise, take a breath, but never be breathless. The consequences can be significant, but I hope not deadly. Apologies to Jean-Luc Godard.