You most likely have heard of the Oxford Comma. It is also referred to as the "serial comma." If you are not familiar with this literary device, it is a comma placed before the word "and" or another conjunction (like or or nor) in a series of three or more terms.
So, here’s one of the more famous examples of why the Oxford Comma is necessary: "We invited the strippers, JFK and Stalin." Adding the Comma eliminates the ambiguity of the identities of the strippers: "We invited the strippers, JFK, and Stalin."
Judge McGuire considered the effect of an Oxford Comma this week in Medfusion, Inc. v. Allscripts Healthcare Solutions, Inc., 2015 NCBC 31. The contractual language at issue was in an agreement between the Plaintiff and Defendant to market an "online patient portal." (That’s a way for patients to communicate on-line with their doctors.) It said that "in no event shall either party be liable for any loss or damage to revenues, profits, or goodwill or other special, incidental, indirect, or consequential damages of any kind, resulting from its performance or failure to perform under this agreement. . . ." Op. ¶22.
Medfusion then sued Allscripts for $4 million of lost profits and revenues notwithstanding that provision, and the parties offered different interpretations of the limitation of liability (LOL) provision. As Judge McGuire described those interpretations, the Defendant’s contention was:
that the comma before "or goodwill" is an Oxford, or serial, comma that sets apart three independent categories of damages barred by the agreement. . . . [U]nder this interpretation, lost revenues are barred.
The Plaintiff’s argument was that:
the ‘or other . . . consequential damages’ language modifies ‘revenues, profits, or goodwill’ to make clear that these categories of damages are only excluded to the extent that they are considered consequential.
So, who prevailed in this tussle over the effect of the Oxford Comma? Neither party, as the Court ruled that the provision was susceptible to either interpretation, and therefore ambiguous. Op. ¶29.
And where does this case go from here? A jury trial on the meaning of this Oxford Comma sentence? Maybe, but first the Plaintiff had to step through the Defendant’s argument that the lost profit damages that Plaintiff was seeking were not direct damages but were instead "consequential" damages (barred under either construction of the contract).
Lost profits can be either direct or consequential damages under the Illinois law that applied to the contract, depending upon the circumstances. Op. ¶34 . I looked briefly at North Carolina law on this point, and it doesn’t seem that North Carolina’s courts have ever addressed the question of the categorization of lost profit damages.
In the circumstances of this particular contract, Judge McGuire ruled that lost profits "were clearly part of the bargain between the parties and flowed directly from the alleged breach." ¶34. The damages were therefore direct and recoverable under Plaintiff’s interpretation.
Although Plaintiff’s breach of contract claims survived Defendant’s Motion to Dismiss, most of Plaintiff’s tort based claims (for fraudulent inducement, fraud, and unfair and deceptive practices) were dismissed.
I don’t think this case provides any guidance on the use of the Oxford Comma in drafting agreements. Or writing briefs, for that matter. Use your best judgment.