Tag Archives: payment bond

GENERAL CONTRACTOR INTERVENING TO COMPEL ARBITRATION PER THE SUBCONTRACT

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It is not uncommon that a general contractor’s subcontract will include an arbitration provision.  Or it will allow the general contractor to select binding arbitration as the method to resolve disputes at the general contractor’s SOLE OPTION.   A general contractor’s subcontract should absolutely give the general contractor this important right.  (Keep this in mind when drafting dispute resolution provisions for a general contractor.)

It is also not uncommon for a subcontractor the sue a general contractor’s payment bond surety, and NOT the general contractor.  One reason to do this is to create an argument to avoid the dispute resolution provision in the subcontract.  (Another reason is to avoid any pay-if-paid defense.)  When this occurs, a general contractor may still want to arbitrate the subcontractor’s payment bond dispute and a way to do so is for the general intervene in the lawsuit and move to compel arbitration. Sometimes, it is even practical for the general contractor to immediately initiate the arbitration process against the subcontractor, particularly if the general contractor wants to assert a counterclaim, so that the motion to compel is supported by the formal demand for arbitration (and filed with the American Arbitration Association or other body administering the arbitration).  I have done this on a number of occasions.

By way of example, in U.S. f/u/b/o American Electric Co., LLC, 2021 WL 5280665 (M.D.Fla. 2021), the general contractor hired a subcontractor for a federal construction project.  The subcontract included a binding arbitration provision.

As required, the general contractor had a Miller Act payment bond.  The subcontractor filed a Miller Act payment bond lawsuit in federal district court against the payment bond surety.  The general contractor moved to intervene in the lawsuit to compel arbitration of the dispute and stay the dispute pending the outcome of arbitration.  The general contractor also claimed that if arbitration is not compelled, it will assert a counterclaim against the subcontractor.  The district court agreed that that the general contractor was entitled to permissively intervene under the Federal Rules of Civil Procedure:

[The general contractor] and [subcontractor] are the parties to the Subcontract, and, pursuant to the Payment Bond, [the general contractor] is jointly and severally liable for any sum the Court may find the Surety Defendants owe to [the subcontractor].  Under the circumstances similar to those presented in this action, other courts have found that the intervening general contractor’s claims share common questions of law or fact with the subcontractor’s suit against the general contractor’s surety. The Court reaches the same conclusion here.  [The general contractor’s] claims and defenses share common questions of law and fact with the [payment bond] action pending, and, thus, [the general contractor] has shown that its interest is based on the action pending before the Court.

American Electric Company, supra, at *3 (internal citations omitted).

Additionally, the district court further found that the subcontractor would not be prejudiced by staying the action and compelling arbitration:

Here, all considerations weigh in favor of permitting [the general contractor] to intervene. First, allowing [the general contractor] to intervene in this action will further judicial economy by preventing a multiplicity of suits and the risk of inconsistent results. If denied intervention, [the general contractor] could still initiate an arbitration action or a separate lawsuit against [the subcontractor] on the underlying contract dispute. Similarly, if [the general contractor] is barred from intervening and [the subcontractor] recovers against the Surety Defendants, the Surety Defendants may file a separate action for indemnity against [the general contractor]. These various proceedings would waste resources dealing with the same dispute and would present the untenable risk of inconsistent results.

American Electric Company, supra, at *5 (internal citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

NOT ALL WORK IS COVERED UNDER THE FEDERAL MILLLER ACT

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The recent opinion out of the Eastern District Court of Virginia, Dickson v. Forney Enterprises, Inc., 2021 WL 1536574 (E.D.Virginia 2021),  demonstrates that the federal Miller Act is not designed to protect ALL that perform work on a federal construction project.   This is because NOT ALL work is covered under the Miller Act.

In this case, a professional engineer was subcontracted by a prime contractor to serve on site in a project management / superintendent capacity.  The prime contractor’s scope of work was completed by January 31, 2019.  However, the prime contractor was still required to inventory certain materials on site, which was performed by the engineer.  The engineer claimed it was owed in excess of $400,000 and filed a Miller Act payment bond lawsuit on February 5, 2020 (more than a year after the project was completed).

There are two immediate questions that pop out that this court deal with: (1) are the type of project management / superintendent-type services the engineer performed covered under the Miller Act; and 2) did the engineer timely file the Miller Act payment bond lawsuit within the statute of limitations if the project was completed more than a year prior to the engineer filing suit.   Both answers resulted in a resounding No!

MILLER ACT PROTECTS LABOR

The Miller Act protects labor, and while “labor” is not a defined term under the Miller Act, “courts have limited the term to refer only to physical toil or manual labor.” Dickson, supra, at *2.   Supervisory work is generally not considered labor unless it also includes manual labor.  Id.   “[C]lerical or administrative tasks [] even if performed at the job site, do not involve the physical toil or manual work necessary to bring them within the scope of the Miller Act.” Id. (citation omitted).

Here, the engineer was hired in a management and superintendent (supervisor) capacity.  He was subcontracted to oversee manual labor.  Any manual labor, to the extent there was any such as field measurement or inspections performed by the engineer, were incidental to his supervisory duties and “[t]aking field measurements and inspecting materials…were administrative tasks incidental to his role as project manager….[and] they do not rise to the level of physical toil necessary to recover under the Miller Act.” Dickson, supra, at *2 (citations omitted).

The type of work the engineer performed and sought payment for was NOT work covered under the Miller Act.

MILLER ACT STATUTE OF LIMITATIONS

The Miller Act requires a plaintiff to file suit “no later than one year after the day on which the last of the labor was performed or material was supplied” by the plaintiff. Dickson, supra, at *3 citing 40 U.S.C. s. 3133(b)(4).

Here, the project was concluded as late as January 31, 2019.  “Work performed after the termination of the prime contract, like the inventory [the engineer] conducted February 8, 2019 is a post-project task and thus not recoverable under the Miller Act.” Dickson, supra, at *3.

Putting aside that inventory control would be deemed a clerical task and not “labor” covered under the Miller Act, the engineer cannot extend the one-year statute of limitations beyond one-year after the termination / completion of the project.  Id.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

IS A MILLER ACT PAYMENT BOND SURETY BOUND BY A DEFAULT OR DEFAULT JUDGMENT AGAINST ITS PRINCIPAL?

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Maguire-O’Hara Construction, Inc. v. Cool Roofing Systems, Inc., 2020 WL 6532852 (W.D. Oklahoma 2020) is an interesting case dealing with suretyship law and the subject of whether a Miller Act payment bond surety is bound by a default or default judgment against its prime contractor (bond principal).

In this case, a subcontractor sued a prime contractor for breach of contract and the contractor’s Miller Act payment bond surety for a breach of the payment bond.  The prime contractor did not respond to the lawsuit and the subcontractor obtained a default against the contractor.  The Miller Act payment bond surety did engage counsel to defend itself in the dispute.  Prior to trial, the subcontractor moved in limine to preclude the surety from raising defenses at trial under the subcontract because a default was entered against the prime contractor.  The subcontractor argued that the surety should be bound by the default and, therefore, precluded from raising liability defenses under the subcontract.  Such a ruling would leave the surety no defenses disputing liability at trial.

[A] suretys’ liability under the Miller Act coincides with that of the general contractor, its principal.  Accordingly, a surety [can] plead any defenses available to its principal but [can]not make a defense that could not be made by its principal.

Maguire-O’Hara Construction, supra, at *2 (internal citations and quotations omitted).

Here, the trial court held that a default against the prime contractor does not preclude its payment bond surety from raising the liability defenses of the prime contractor (the principal of the bond).  In reaching this decision, though, the trial court indicated this ruling may have likely been different if a judgment, such as a default final judgment, had been entered against the prime contractor.   The trial court cited the Eleventh Circuit Court of Appeals ruling in Drill South, Inc. v. International Fidelity Ins. Co., 234 F.3d 1232 (11th Cir. 2020) where the appellate court affirmed a judgment against the surety because the surety was bound by the default judgment against the prime contractor.

To the extent that [the Miller Act payment bond surety] argues that it had no obligation to defend the action against [the prime contractor], we are not persuaded. We believe the issue is not whether the Agreement of Indemnity imposed an obligation on [the surety] to defend [the prime contractor], but whether it conferred a right to defend. The law requires only that a surety have notice and an opportunity to defend before it is bound by a judgment against its principal. We believe [the surety] had this right and opportunity, and simply chose, for whatever reason, not to exercise its right.

[The surety] argues, however, that when a surety and principal are sued in the same action, and the surety answers  and defends on its own behalf, the surety is not bound by a default judgment entered against the surety’s principal. Although we recognize the existence of authority supporting [the surety’s] position, those cases are not binding on this Court; nor do we find their reasoning persuasive.

We believe that the general rule that a surety is bound by a judgment entered against its principal when the surety had both notice and opportunity to defend applies whether the principal and surety are sued in the same action or in separate actions.

Drill South, 234 F.3d at 1237-1237.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

MILLER ACT PAYMENT BOND SURETY BOUND TO ARBITRATION AWARD

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Here is an interesting case binding a Miller Act payment bond surety to an arbitration award against its prime contractor (bond principal) that it received sufficient notice of.  Notice is the operative word.  The surety could have participated in the arbitration, elected not to, and when its prime contractor (bond principal) lost the arbitration, it was NOT given another bite out of the apple to litigate facts already been decided.

In BRC Uluslararasi Taahut VE Ticaret A.S. v. Lexon Ins. Co., 2020 WL 6801933 (D. Maryland 2020), a prime contractor was hired by the federal government to make security upgrades and interior renovations to a United States embassy in the Czech Republic.  The prime contractor hired a subcontractor to perform all of the installed contract work.   The prime contractor terminated the subcontractor for default during the course of construction.

The subcontractor demanded arbitration in accordance with the subcontract claiming it was wrongfully terminated.  The subcontractor also filed a lawsuit asserting a Miller Act payment bond claim against the prime contractor’s surety (as well as a breach of contract action against the prime contractor). The subcontractor made clear it intended to pursue its claims in arbitration and hold the payment bond surety jointly and severally liable.  The parties agreed to stay the lawsuit since the facts were identical to those being arbitrated. The arbitration went forward and an award was entered in favor of the subcontractor and against the prime contractor for approximately $2.3 Million.

The subcontractor moved to lift the stay entered in the lawsuit to confirm the arbitration award against the prime contractor and Miller Act payment bond surety.  The prime contractor moved to vacate the award.

Beginning with the prime contractor’s motion to vacate the arbitration award, the Federal Arbitration Act gives limited grounds to support vacating an arbitration award.  The grounds the prime contractor raised will not be discussed. They were all denied because it is difficult to vacate an arbitrator’s final award and that is the important take-away message.  In support of this (and contained in a noteworthy, lengthy discussion by the Court), the Court stated: “The FAA [Federal Arbitration Act] creates a ‘strong presumption in favor of confirming arbitration awards,’ and ‘judicial review’ of such awards ‘must be an extremely narrow exercise.’” BRC Uluslararasi Taahut, supra, at *4.

Of significance here, the subcontractor moved to enforce the arbitration award against the Miller Act payment bond surety, as it should.  Even though the surety was not a party to the arbitration, it was on notice of the arbitration, was notified the subcontractor would look to hold it jointly and severally liable, and the surety consented to the stay of the lawsuit pending the outcome of the arbitration. The Court noted, “[s]uch notice is sufficient to bind [the surety] to the arbitration award.” BRC Uluslararasi Taahut, supra, at *9 (citing cases showing that if the surety has notice of the proceedings against its principal, it can be bound by an arbitration award against the principal).  Further, the Court intuitively stated:

[The surety] clearly knew that the arbitration would occur.  Now dissatisfied with the outcome, [the surety] wishes not to be bound by the very proceeding [the surety] averred would avoid duplicative litigation.  The Court suspects that had [the prime contractor] prevailed in arbitration, [the surety] would be singing a different tune.  [The surety] will not be afforded a second bite at the litigation apple simply because it must now honor its obligations as the surety on the project.

Id.

Remember, if you are arbitrating rights, do not neglect to timely file your Miller Act payment bond lawsuit, or for that matter, any statutory payment bond lawsuit.  Give the surety NOTICE that you intend to hold it jointly and severally liable for any arbitration award entered against its prime contractor (bond principal).   Whether the surety elects to participate in the arbitration is within its discretion, but the key is to give the surety notice so that if you do prevail, you find yourself in same shoes as the subcontractor discussed in this case—binding the payment bond surety to the award entered against the prime contractor.  The prime contractor and its surety should also recognize this likely outcome.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

QUICK NOTE: USE COUNSEL WHEN PREPARING A NOTICE OF NONPAYMENT

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If you are a subcontractor or supplier working on a private construction project, you always want to pull up the Notice of Commencement from the public records to see if there is a payment bond in place.  If there is not, you know you have to preserve your construction lien rights as to the real property (the project).  If there is, you know you will have to preserve your rights against the payment bond.

In an earlier posting, I discussed statutory changes changes to notices of nonpayment that were to take effect as of October 1, 2019.   A notice of nonpayment must be served by the unpaid claimant within 90 days of its final furnishing to preserve payment bond rights (for amounts above 10% retainage).   These changes have gone into effect and are important for a claimant to know in order to preserve rights against an unconditional payment bond issued per Florida Statute s. 713.23.   (If you are unsure about your rights relative to a payment bond, please work with counsel to ensure your rights are protected!)  The notice of nonpayment is a statutory form that will need to be notarized by the claimant.  The claimant should sign/notarize because the notice of nonpayment is reflecting amounts owed including retainage, the amount paid, and the approximate amount of money associated with to-be-performed work.

One of the recent statutory changes is that:

A claimant who serves a fraudulent notice of nonpayment forfeits his or her rights under the bond. A notice of nonpayment is fraudulent if the claimant has willfully exaggerated the amount unpaid, willfully included a claim for work not performed or materials not furnished for the subject improvement, or prepared the notice with such willful and gross negligence as to amount to a willful exaggeration.

It is uncertain how this will be applied to notices of nonpayment other than this mimics language relative to a “fraudulent lien.”  One of the defenses to a fraudulent lien is known as the advice of counsel defense.  It logically makes sense that this advice of counsel defense will also apply to the preparation of notices of nonpayment.  For this important reason, a claimant should work with counsel and have its counsel prepare the notice of nonpayment with the relevant accounting information, whether it be a payment application(s), a change order log, an accounting summary, or potential change orders and issued back-charges.  This will facilitate a discussion as to amounts to include and will support an advice of counsel defense.  No different than a lienor using a lawyer to prepare a lien (and I would encourage all lienors to utilize counsel for lien preparation), a claimant should use a lawyer to prepare a notice of nonpayment.

Please let me know if you need assistance with preserving payment bond rights

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

QUICK NOTE: WEBINAR ON MAXIMIZING PAYMENT DURING COVID-19

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How do you maximize payment, particularly during an uncertain COVID-19 economy?  Check out the webinar I did for LevelSet where you can watch the webinar or read the transcript.  I don’t want to give any spoilers, but it discusses preserving and enforcing lien and payment bond rights, tidbits to ensure you are maximizing payment, charting contractual notice provisions relating to force majeure, and those contractual provisions to note moving forward in this new climate. All good-to-know information to ensure you are preserving rights and appreciating risks with a topic that did not cross your mind a few months ago!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

QUICK NOTE: MAKE SURE TO TIMELY PERFECT YOUR CONSTRUCTION LIEN AND PAYMENT BOND RIGHTS!

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In today’s current climate, you do not want to wait until the last minute to record your construction lien or serve your notice of nonpayment to preserve your payment bond rights.  Operate conservatively and preserve these rights now, not later.   Whether preserving construction lien or payment bond rights, the key date is 90-days from your final furnishing date.  A construction lien must be recorded within 90 days from your final furnishing date.  Likewise, a notice of nonpayment (to preserve payment bond rights on a private project) needs to be served within 90 days from your final furnishing date.

It is important to remember that performing punchlist, warranty, and corrective work does NOT extend your final furnishing date. In other words, do not think you can record a lien or serve your notice of nonpayment within 90 days from completing punchlist or warranty work.  That would be a bad idea.  See, e.g., Delta Fire Sprinklers, Inc. v. Onebeacon Ins. Co., 937 So.2d 695 (Fla. 5th DCA 2006) (performing punchlist items insufficient for extending final furnishing date in order for subcontractor to timely serve its notice of nonpayment).

MAKE SURE TO TIMELY PERFECT YOUR CONSTRUCTION LIEN AND PAYMENT BOND RIGHTS!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

QUICK NOTE: FRAUDULENT NOTICE OF NONPAYMENT

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There is a defense to construction liens raised by owners known as the fraudulent lien defense.  A party can assert a fraudulent lien as an affirmative defense or as an affirmative claim.  This is embodied in Florida Statute s. 713.31.

Recently, with respect to payment bond claims, there is also a defense relating to a party’s fraudulent notice of nonpayment.  This fraudulent notice of nonpayment defense mimics the fraudulent lien defense and provides:

A lienor who serves a fraudulent notice of nonpayment forfeits his or her rights under the bond. A notice of nonpayment is fraudulent if the lienor has willfully exaggerated the amount unpaid, willfully included a claim for work not performed or materials not furnished for the subject improvement, or prepared the notice with such willful and gross negligence as to amount to a willful exaggeration. However, a minor mistake or error in a notice of nonpayment, or a good faith dispute as to the amount unpaid, does not constitute a willful exaggeration that operates to defeat an otherwise valid claim against the bond. The service of a fraudulent notice of nonpayment is a complete defense to the lienor’s claim against the bond.

Fla. Stat. s. 713.23(1)(d); 255.05(2)(a)(2).

It can be expected that any party required to serve a notice of nonpayment will receive as an affirmative defense to a payment bond lawsuit that the notice of nonpayment was fraudulent.  There has not been a case as of yet to apply a standard to this defense so it is presumed that the standard will be fairly consistent with the standard applied to fraudulent liens.  Nonetheless, even if the standard is challenging, this will be an expected defense where notices of nonpayment will be challenged as being fraudulent.    Also, a claimant that is not required to serve a notice of nonpayment to preserve its payment bond rights will not have to deal with this notice of nonpayment defense.

If you need to serve a notice of nonpayment to preserve payment bond rights or, alternatively, are the recipient of a notice of nonpayment, it is prudent to consult with counsel to ensure your rights are appropriately preserved and protected.   When dealing with fraudulent liens, a lienor can rely on advice of counsel if the lien is prepared by counsel.   Presumably, a claimant that serves a notice of nonpayment should be able to rely on advice of counsel too if the notice of nonpayment was prepared by counsel.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

TRANSFERRING VENUE OF MILLER ACT PAYMENT BOND LAWSUIT PER MANDATORY FORUM SELECTION PROVISION

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Many construction contracts contain a forum selection provision that requires disputes to brought in a particular jurisdiction.  A mandatory forum selection provision will use words of exclusivity, like “shall,” that unequivocally requires disputes to be brought in that jurisdiction.  On the other hand, a permissive forum selection provision will not use words of exclusivity meaning a dispute “may” be brought in that jurisdiction.  Where to file a lawsuit is an initial, important consideration.  (For a further discussion on how Florida deals with forum selection provisions, check this posting.)

Under the federal Miller Act, governed under federal law, lawsuits are to be brought in the district where the contract was to be performed and executed, i.e., typically where the project is located.  40 USC s. 3133.  However, this does not mean that there is not a valid basis to sue in another jurisdiction, or move to transfer venue to another jurisdiction, such as when the underlying mandatory forum selection provision requires a jurisdiction different than the where the contract is to be performed or executed.

For example, in U.S. f/u/b/o John E. Kelly & Sons Electrical Construction, Inc. v. Hartford Fire Ins. Co., 2020 WL 704899 (D. Maryland 2020), a subcontractor filed a Miller Act payment bond lawsuit in Maryland against the prime contractor and prime contractor’s surety.  The federal project was performed in Maryland which is why the lawsuit was filed in Maryland.  The subcontract, however, required that lawsuits “shall be brought in Morgan County, Alabama.”  The prime contractor and its Miller Act payment bond surety moved to transfer venue from Maryland to Alabama.  The federal district court agreed to transfer venue finding that “as with any statutory venue provision [such as in the Miller Act], parties way waive its protections by agreeing to a mandatory forum selection provision.”  U.S., supra, at *3.

Mandatory forum selection provisions are given signifiant weight because this is the forum that parties bargained for prior to the occurrence of any dispute.  This is why examining forum selection provisions prior to filing a lawsuit is an initial, important consideration.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

SUIT ON SUBCONTRACTOR’S COMMON LAW PAYMENT BOND

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When a subcontractor furnishes a payment bond, is it referred to as a common law payment bond governed by state law.  There is no federal statute (or even state statute in most jurisdictions) governing the requirements of a subcontractor’s payment bond, hence the reason it is oftentimes referred to as a common law payment bond.  This is different than a prime contractor’s payment bond which is generally governed by federal or state-specific statutes.

In an opinion out of the Northern District of North Dakota, U.S. v. Western Surety Company, 2010 WL 609548 (D. North Dakota 2020), the Court discussed a painting sub-subcontractor’s claim against a subcontractor’s common law payment bond on a federal project.    Here, the subcontractor hired the sub-subcontractor and a payment dispute arose.  The subcontractor furnished its own payment bond.   The sub-subcontractor filed a lawsuit against both the prime contractor’s Miller Act payment bond and the subcontractor’s common law payment bond.  The Miller Act payment bond dispute got resolved and the case proceeded as to the subcontractor’s common law payment bond.

The common law payment bond surety moved for summary judgment claiming the painting sub-subcontractor failed to properly trigger the bond because it failed to provide notice of its claim as required by the terms of the bond.   Since the bond is deemed a contract, the Court looked at principles of North Dakota contract law governing this argument.   The common law bond required a claimant to give written notice within 90 days of its last day of work (which is a common requirement in such bonds).  The surety wanted the Court to construe this language similar to the requirements of the federal Miller Act by requiring the sub-subcontractor to give it notice with substantial accuracy of the claim.  The Court rejected this sentiment, and denied the summary judgment, as the subcontractor’s payment bond made no mention of “substantial accuracy.”   The Court looked at a hodge-podge of communications finding that a reasonable jury could conclude that the painting sub-subcontractor complied with the provisions of the bond.  Additionally, the Court noted that even if the notice was inadequate, the surety failed to establish how it was prejudiced based on North Dakota law that states: “A surety is exonerated…[t]o the extent to which the surety is prejudiced by an omission of the creditor to do anything when required by the surety which it is the creditor’s duty to do.”  U.S., supra, at *6 (internal quotation and citation omitted).

Lastly, the Court discussed how the subcontractor’s common law payment bond mentions the obligee of the bond is the general contractor.  This is how all subcontractor payment bonds are worded.  However, within the bond, there is a definition for “claimants” that allows claimants to sue on the bond.  The Court addressed this to reflect that the painting sub-subcontractor, meeting the definition of claimant in the payment bond, was a third-party beneficiary of the subcontractor’s payment bond and had standing to sue the bond.

This is a good case if you are dealing with a subcontractor’s common law payment bond.  The requirements to sue the bond will be less rigorous than suing a payment bond governed by a statute, such as a Miller Act payment bond.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.