A Maine dairy business was required to pay its employees $5 million because a missing “Oxford comma” created ambiguity in an overtime law. A link to an article on the case in the ABA Journal is below. In this instance it was the legislature that created the ambiguity but it’s not uncommon for businesses to encounter the same problem with contracts they’ve entered, and, sometimes, drafted without the assistance of an attorney. It’s very tempting, especially with something which seems straight forward, not to enlist the assistance of an attorney when drafting documents.

However, as with the situation involving the dairy business, even one missing comma can potentially create liability when none was intended. As they say, “it’s all fun and games until somebody loses an eye”. So long as everyone is getting along, and there are no problems, then poorly drafted contacts are fine. It’s when the parties stop getting along that it matters.

This is much more common than you might believe. Very often when we litigate the terms of a contract some issue of ambiguity arises. Clients often think that if there is an ambiguity that it’s okay because they’ll have the chance to explain what was meant. However, of course, at that point they are not getting along with the other side, and the other side probably won’t agree.  Then it will be up to the judge to decide who is more convincing. That’s not where you want to be if you can help it.

At Snell Legal we represent many medical practices.  We do just about anything they need from a legal services perspective. This includes drafting employment agreements including restrictive covenants, such as non-competes. On occasion we also represent physicians who are joining, or leaving, a practice. Some years back a physician came to me who wanted to leave the practice where they were employed and remain in the area and practice.  A potential obstacle to that goal was a restrictive covenant in their employment agreement which seemed to prohibit being employed in the area and competing with their current employer.

The agreement had been prepared by a well known and regarded local firm. The language in the non-compete said that “upon termination of the agreement” the physician could not compete in the area for a period of two years. The agreement had actually expired, and not been renewed, even though the physician was still employed. It wasn’t terminated prior to expiration. Since the language said “upon termination of the agreement” rather than “termination of employment” the physician was free to go into practice locally and compete. So, one word “employment” in place of two “the agreement” would have made all the difference.  I could share many more similar examples.

If you are entering into an agreement of any significance, whether with an employee or someone else, it’s wise to seek the assistance of an attorney.  If you’re not sure whether you need assistance, or what it would cost, we’re glad to tell you, free of charge. And, I know, you’re probably thinking, the medical practice did use an attorney and look what happened! However, that is unusual, ordinarily competent legal counsel who have relevant expertise are going to get it right. We certainly endeavor to get it right each and every time.  I’d much prefer to help you avoid a problem than help you deal with a problem which could have been avoided. But, if you already have a problem, we can help with that too.

http://www.abajournal.com/news/article/dairy_company_settles_overtime_suit_that_hinged_on_lack_of_oxford_comma/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email