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
Ninth 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 ten 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.
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