A Reminder that “And” and “Or” Matter

Thanks to @legalwritinged, I learned about this post on Porter Wright’s blog Employment Law Reporter. It’s about the recent opinion of the U.S. District Court for the Northern District of Ohio in Alloy Bellows & Precision Welding, Inc. v. Jason Cole, No. 1:15CV494, 2016 WL 1618108, at *1 (N.D. Ohio Apr. 22, 2016) (PDF here).

The Opinion

Cole worked for the plaintiff, then went to work for a competitor. The plaintiff sought a preliminary injunction and temporary restraining order against Cole, claiming that Cole had violated a nondisclosure and noncompetition agreement.

Here’s the part of the contract we’re interested in:

Either during your working relationship with Alloy Bellows, or for a period of two (2) years after your working relationship and/or severance period ends with Alloy Bellows, you agree and accept that you shall not, (I) directly or indirectly engage in any business that completes (sic) with Alloy Bellows in any way in North America ….

Here’s what the court said:

Cole argues that because the above language is written in the disjunctive, a plain reading means he was prohibited from competing with Alloy Bellows either while he worked for them or after he stopped working for Alloy Bellows, but not both. Since there is no allegation he competed with Alloy Bellows while he worked for them, Cole contends he did not violate the express terms even if he competed with Alloy Bellows after he left its employ.

Plaintiff counters that the language above is conjunctive and any other reading is “absurd.” Furthermore, Cole’s attempts to find a “clever” way around the Non-Compete indicates Cole understood it to be inclusive, forbidding competition both while employed and for a period of two years thereafter.

The Court finds the above language in the Non-Compete further militates against the issuance of an injunction order. The use of “either, or” is disjunctive, and generally is use to state a choice between two things i.e.- “Sam will either exercise or rest today.” However, in some context it may include both choices – i.e., “You may buy bread at either Giant Eagle or Safeway.” The intent of the parties is critical on this issue, but that is a question of fact that cannot be determined at this juncture. Therefore, Plaintiff has not proven by clear and convincing evidence a substantial likelihood of success on the merits of its Breach of the Non-Compete agreement and its motion for injunctive relief is denied on this basis as well.

My Analysis

Unfortunately for the court, bandying about words like “disjunctive” isn’t the same thing as knowing what’s going on.

What we have here is an instance of our old friend, ambiguity of the part versus the whole. It’s discussed in MSCD chapter 11. The court was correct that you can have alternative meanings, but its analysis was off.

For one thing, according to The Cambridge Grammar of the English Language (CGEL) at page 1298, “When a subclausal or-coordination falls within the scope of a negative, it is equivalent to an and-coordination of negative clauses.” In other words, the natural interpretation of I didn’t like his mother or his father is I didn’t like his mother and I didn’t like his father.

The grammatical context in a little different in Alloy Bellows, but the more natural reading is analogous—Cole is prohibited from competing during both periods. To use a simpler example that exhibits the same structure, if I say You’re not allowed to play video games on Saturday or Sunday, you would have to be obtuse to conclude that as you hadn’t played video games on Saturday you may play video games on Sunday.

What about either? CGEL says that either tends to strengthen the disjunctive meaning, but that’s all:

I’ll be seeing her on either Friday or Saturday conveys somewhat more strongly than the version without either that I’ll be seeing her on just one of those days. Exclusiveness nevertheless is still only an implicature: They are obtainable at either Coles or Woolworths emphasizes the choice but, like the version without either, could readily be used in a context where they are obtainable at both stores.

So in the language at issue in Alloy Bellows, use of either isn’t enough to undercut the natural reading.

Furthermore, once you take into account the context, the meaning sought by Cole is indeed absurd. No business purpose could be served by applying the prohibition to only one of the two periods.

It so happens that you see exactly the same sort of misdiagnosis in the Third Circuit’s messy opinion in Meyer v. CUNA Mutual Insurance Society. I discuss that in MSCD and in this article. To the credit of the Alloy Bellows court, theirs wasn’t a decision on the merits, so a different standard applied: it considered whether the plaintiff had a strong likelihood of succeeding on the merits.

But that’s not to let the drafters off the hook. It would have been more prudent to use and. As noted in MSCD 11.37, “According to CGEL, or is most characteristically used when the speaker believes that only one of the component propositions joined by or is true, and as a result or typically conveys the implicature that not all of the propositions are true.” CGEL calls this the “not and” implicature. Because most judges are of limited semantic acuity, they’re prone to seeing the “not and” implicature in all contexts, even when it clearly doesn’t apply. Using and would have conveyed the meaning sought by the plaintiff, with less opportunity for mischief.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.