The Moral of a Recent Second Circuit Opinion: Don’t Rely on Commas for Disambiguation

Via this post by Ray Ward I learned of the recent opinion of the Second Circuit Court of Appeals in AIG v. Bank of America (PDF copy here). In the opinion, the court states that whether a modifying phrase following a list of nouns or phrases modifies each item on the entire list, or only the last item, depends on whether the modifying phrase is separated from the last item by a comma.

I won’t get into the statutory language at issue. Instead, I’ll limit myself to the general principle, as stated by the court:

We address first the grammar. The quotation from Barnhart on which Defendants rely does not fully state the principle of construction. The Barnhart opinion, immediately following the sentence quoted by the Defendants, cites and quotes from the Sutherland treatise on statutory construction. See 2A N. Singer, Sutherland on Statutory Construction § 47.33, p 369 (6th rev. ed. 2000). The statement in the treatise, on which the Supreme Court relied, is more qualified and nuanced than the statement the Defendants quote from the text of the Barnhart opinion. The treatise says, “Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.” See Barnhart at 26 (emphasis added).

One of the methods by which a writer indicates whether a modifier that follows a list of nouns or phrases is intended to modify the entire list, or only the immediate antecedent, is by punctuation—specifically by whether the list is separated from the subsequent modifier by a comma. When there is no comma, as in the statute considered in Barnhart, the subsequent modifier is ordinarily understood to apply only to its last antecedent. When a comma is included, as in the Edge Act provision, the modifier is generally understood to apply to the entire series. See, e.g., Sir Ernest Gowers, Fowler’s Modern English Usage 587-88 (2d ed. 1965) (explaining that in the sentence “French, German, Italian, and Spanish, in particular are taught,” the insertion of the comma at the end of the list “show[s] that in particular relates to all four languages and not to Spanish only”); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir. 1999) (“When a modifier is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents.”), abrogated on other grounds by Sarhank Grp. v. Oracle Corp., 404 F.3d 657 (2d Cir. 2005). For example, the statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks,” differs from the statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks.” The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so.

This analysis exhibits confusion of the sort to which judges are prone: they confuse grammar with arbitrary principles of interpretation. The former involves how people actually write; the latter are driven by expediency. The Second Circuit invokes grammar, but the distinction it draws exhibits the arbitrariness of a principle of interpretation.

In particular, I don’t share the Second Circuit’s confidence that anyone writing, or indeed reading, the two “basketball team” examples would intend, or derive, the alternative meanings offered by the Second Circuit. It’s unrealistic to expect writers and readers to have such a firm distinction in mind. That was the point I made in my affidavit in the Canadian “case of the million-dollar comma.” (Go here for my article about that dispute, but note that MSCD contains my updated analysis of the comma issue.)

That said, my beef isn’t with the courts—it’s drafters who create the confusion, leaving judges to clean up the mess. If you want to avoid having a court apply an arbitrary principle of interpretation when interpreting your contract, make sure you avoid the sort of syntactic ambiguity at issue in AIG v. Bank of America. In particular, if presence or absence of a comma might affect meaning, restructure the sentence. For example, if only the two large guards do spectacular dunks, refer to them and their dunks at the beginning of the sentence. For more detailed guidance, see MSCD chapter 12.

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.