Monday, March 27, 2017

Syntactic Ambiguity *1

By Steve Stapleton

“For want of a comma, we have this case.”  So begins the opinion of O’Connor v. Oakhurst Dairy from the United States Court of Appeals for the First Circuit. *2

Chris O’Connor sued his employer, Oakhurst Dairy, alleging he was entitled to overtime for his delivery of milk on his employer’s behalf.  Chris relied on a statutory scheme in the state of Maine, the operative language of which says that workers who do not receive overtime are those involved in

the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of  … [p]erishable food. *3

So the question was, was Chris (and the other class action plaintiffs) entitled to overtime.  In other words, what is the meaning of the phrase “packing for shipment or distribution?”  It was a question of some importance as the amount involved was about $10 million in unpaid overtime.  The district court concluded, despite the absence of a comma after the word “shipment,” that the Maine legislature nevertheless unambiguously intended for the last term in the exemption’s list of activities to identify an exempt activity in its own right.  The district court thus granted the dairy company summary judgment since their drivers do indeed “distribut[e] …[p]erishable food.”

The Court of Appeals was not persuaded, concluding that “the exemption’s scope is actually not so clear in this regard.”  

The delivery drivers contended that the phrase “packing for shipment or distribution” – not separated by a comma after the word “shipment” – was a single activity of “packing,” regardless of whether the packing was done for “shipment” or for “distribution.”  Thus, the drivers contended that although they do handle perishable foods, they do not engage in packing such food and thus they are outside the exemption and Maine’s overtime law protects them.

The dairy company responded that the words refer instead to two distinct exempt activities, the first being “packing for shipment” and the second being, “distribution.”  Because the delivery drivers do engage in the “distribution” of dairy products, which, in turn, are “perishable foods,” the dairy company argued that the drivers fall within the exemption and thus outside the overtime law’s protection.

The drivers pointed to other statutory constructs under Maine’s state law using the terms “distribution” and shipment” as independent separate activities. *4 The drivers also pointed to the “parallel usage convention.” *5 In accordance with that convention, the drivers read “shipment” and “distribution” each to be objects of the preposition “for”  *6 that describes the exempt activity of “packing.”  Conversely, the gerunds, *7 the drivers argued, referred to stand-alone, exempt activities, i.e., “canning, preserving, …” etc.

The Court noted that the dairy company’s reading violated the parallel usage convention because it treated one of the two non-gerunds (“distribution”) as if it were  performing a distinct grammatical function from the other (“shipment”) since the latter functions as an object of a preposition while the former does not.  A further violation of the parallel usage convention in the dairy company’s reading was that it treated a non-gerund (again, the word “distribution”) as if it were performing a role in the list – naming an exempt activity in its own right – that gerunds otherwise exclusively perform.

The Court did see the dairy company’s point in one instance, noting that the  conjunction in the exemption – “or” – appears before the word “distribution;” but no conjunction precedes the word “packing.” *8  Thus, in the drivers’ reading of the statute there is no conjunction to mark off the last listed activity, “packing or distribution,” and in the Court’s view, thus undermining their argument.

Nevertheless, after reviewing the legislative history of the statute to a less than rousing finale, the Court of Appeals noted that the state’s wage and hour laws “should be liberally construed to further the beneficent purposes for which they are enacted.”  Thus, the ambiguity in the Maine statute, the Court found, clearly favored “the driver’s narrower reading of the exemption.”  The Court of Appeals therefore reversed the grant of summary judgment and remanded the case back to the lower court for further proceedings.


  1. Syntactic ambiguity is a verbal fallacy arising from an ambiguous grammatical construction and from a joke about bad punctuation:  A panda walks into a café. He orders a sandwich, eats it, then draws a gun and proceeds to fire it at the other patrons.  "Why?" asks the confused, surviving waiter amidst the carnage, as the panda makes toward the exit. The panda produces a badly punctuated wildlife manual and tosses it over his shoulder.  "Well, I'm a panda," he says. "Look it up."  The waiter turns to the relevant entry in the manual and, sure enough, finds an explanation. "Panda. Large black-and-white bear-like mammal, native to China. Eats, shoots and leaves."
  2. O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir., March 13, 2017).
  3. See 26 M.R.S.A. § 664(3).
  4. See 10 M.R.S.A. § 1476 (referring to “manufacture, distribution or shipment”).
  5. See Chicago Manual of Style, § 5.212 (16th ed. 2010)(“Every element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun. verb, adjective, adverb).”
  6. For the grammatically challenged, a noun names a person, place, thing, or idea.  A preposition is a word that comes before a noun to show its relationship to another word in the phrase or clause.  The object of a preposition is the noun or pronoun governed by the preposition.
  7. Again, for the grammatically challenged, a gerund is a word ending in “ing,” like “canning” or “packing.”  In the statute’s text, the two non-gerunds are “distribution” and “shipment.”
  8. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts, at 119  (2012)(“[s]ometimes drafters will omit conjunctions altogether between enumerated items [in a list],” in a technique called “asyndeton.”

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