The National Law Forum

2021 Biden Plan Estate Planning Advisory

After President-Elect Joe Biden’s Electoral College victory over President Donald Trump, the nation’s eyes were largely focused on the two US Senate run-off elections in Georgia, which determined the makeup of the US Senate for the coming years and, with that, affected the likelihood of the enactment of President-Elect Biden’s tax agenda and other initiatives. Now that Democrat candidates Jon Ossoff and Raphael Warnock have won their respective elections, the Senate is divided 50-50, with any potential tie-breaking vote resting in the hands of Vice President-Elect Kamala Harris. As a result of these elections, many are left wondering how President-Elect Biden procedurally will go about enacting his various tax proposals and intentions (collectively, the “Biden Plan”), the likelihood of the enactment of the Biden Plan, whether the effective date of the Biden Plan could be made retroactive to January 1, 2021, and, if so, what can be done about this in the planning process. While the Biden Plan is comprehensive and contains proposals for individual income tax, taxes related to real property, and corporate tax reform (including increasing the top individual income tax rates, limiting deductions and taxing capital gains as ordinary income), this advisory is limited to the potential estate, gift and generation-skipping transfer (GST) tax reforms that President-Elect Biden has discussed.

Overview of President-Elect Joe Biden’s Estate, Gift and Generation-Skipping Transfer Tax Plan

President-Elect Biden has expressed an intention to decrease an individual’s federal estate tax exemption amount either to $5 million per individual (and $10 million for a married couple), perhaps indexed for inflation and perhaps not, or to the pre-Tax Cuts and Jobs Act amount of $3.5 million per individual (and $7 million for a married couple). This decrease in lifetime exemption could be coupled with an increased top tax rate of 45 percent. Additionally, although Biden does not support a “wealth tax,” and there has been no discussion of including a “wealth tax” in the Biden Plan, the Biden Plan might repeal stepped-up basis on death and, moreover, might tax unrealized capital gains at death at the proposed increased capital gains tax rates. While anything is possible, it should be noted that although transfer tax rates have gone up and down, transfer tax exemption amounts have never decreased before and prior attempts to repeal stepped-up basis on death have not been successful.

Likelihood of Enactment of the Biden Plan

Congressional Procedures

With the Democrats capturing Georgia’s two seats in the US Senate in run-off elections, they will control both chambers of Congress, including their tax-writing committees. While this should give President-Elect Biden an easier path to pass much of his tax agenda, there are certain additional Congressional procedures that need to be considered before that happens.

In the Senate, subject to limited exceptions, it typically takes 60 votes to avoid a filibuster (which otherwise could delay or block legislative action). Although Democrats “control” the Senate, they hold only 50 seats. Barring filibuster repeal (which would be an unexpected change to the long-standing Senate rules), the support of at least some Republican Senators will be needed to achieve the 60 votes required to avoid a filibuster and allow tax reform legislation to proceed. That being said, there is also a process referred to as “budget reconciliation” by which some types of legistation (including certain tax measures) can be moved forward in the Senate with a simple majority vote.

The purpose of budget reconciliation is to provide a process by which Congress, once it has adopted a fiscal budget, can change existing spending and revenue laws to bring their application into conformity with the adopted budget. In other words, Congress must reconcile existing laws with the newly adopted budget. The Congressional Budget and Impoundment Control Act of 1974 provides for an expedited procedure in both the House and the Senate that limits debate to 20 hours, foreclosing the possibility of filibuster. Budget reconciliation cannot be used for all types of legislation. In President-Elect Biden’s favor, however, the budget reconciliation process has been used since the late 1990s to enact revenue reducing legislation (i.e., tax decreases) and historically has been employed to achieve revenue increasing legislation (i.e., tax increases). While President-Elect Biden campaigned on his ability to work with lawmakers from across the aisle, it is likely that budget reconciliation may be attempted to advance his tax-based legislative policies, but it will succeed only if the entire Democratic caucus votes in favor of the proposed bill (which is by no means guaranteed).

Retroactivity

Assuming that some version of the Biden Plan is passed into law, one needs to consider its effective date. Typically, tax legislation is prospective, and might not be effective until January 1, 2022 or later (depending upon how long the enactment process takes). Sometimes, however, tax legislation is retroactive, in which case it would either be effective as of its date of introduction (which would in all events be sometime after the inauguration) or possibly even effective as of January 1, 2021.

Although many high-net-worth individuals are contemplating additional planning in 2021 to use more or all of their remaining estate, gift and GST tax exemptions before a potential reduction in those exemption amounts (currently $11.7 million under each tax regime), one reason to proceed with some amount of caution is the possibility that any changes to these tax regimes may be retroactive to January 1, 2021. In other words, a retroactive reduction in exemption amounts to, for example $5 million, could cause otherwise gift-tax free transfers retroactively to be subject to a large amount of gift tax. There is some precedent in previous court cases that suggests such a retroactive law lowering exemption amounts would be legal and constitutional, but it should be noted that this precise issue previously has not been litigated and its outcome would be uncertain. Still, much case law points to the fact that a retroactive change would be appropriate except in a situation where the taxpayer had no reason to think that the tax treatment would later change. Given the amount this topic has been discussed, such an argument that the taxpayer could not have foreseen the change may not be persuasive.

Accordingly, while the law appears to suggest that a change to the estate and gift tax regime may be applied retroactively to January 1, 2021 (if such legislative act is enacted within a reasonable time, such as calendar year 2021), there are, on the other hand, legitimate arguments that suggest a retroactive decrease in exemption amounts unfairly would prevent taxpayers from the opportunity to plan their affairs — and penalize those who attempt to undertake such planning — and so such retroactive treatment could be disallowed. Regardless of whether such a retroactive change in exemption amounts would be constitutional, it also is important to consider whether Congress would even attempt to make a new law retroactive. Although we are still evaluating the current political landscape, which inherently is an ongoing matter, our general view is that the political forces at play likely would not be supportive of a retroactive law given the Democratic control of the Senate by the slimmest of margins (in other words, there is not likely to be strong support for a retroactive law, but it is impossible to foresee how legislative negotiations will play out). Therefore, although it is possible that a retroactive change to the gift and estate tax regime can be legitimate, because the law is not entirely clear on this issue and political pressure suggests it is not a high priority, at present, it seems questionable that any change in exemption amounts would be applied retroactively. More likely, any change in law that is passed in 2021 would be effective on a forthcoming date, such as January 1, 2022. That said, due to the uncertainty of what laws might change and when they would take effect, we recommend all individuals contemplating additional 2021 estate and gift planning to contact an experienced estate planning professional to navigate the various issues, and to take action sooner rather than later to get a planning strategy in place.

Counteracting Buyer’s Remorse

If reductions to the gift, estate and GST exemption amounts are made retroactive to January 1, 2021, is there anything that can be done for individuals who made gifts in 2021 prior to the enactment of these changes in law? Individuals contemplating such gifts should speak with an experienced estate planning professional to discuss certain techniques that can be considered to unwind estate planning in order to avoid an unintended gift or GST tax. For example, the individual could consider disclaimer planning, including allowing one beneficiary of a trust to disclaim on behalf of all trust beneficiaries. This should provide the designated beneficiary with nine (9) additional months to disclaim the gift and, if the designated beneficiary does so, the result should be that the gifted assets are returned to the donor without using any of the donor’s gift and/or GST exemption.

Individuals could also consider planning with qualified terminable interest property (QTIP) elections. A married person could make a gift to a trust for the benefit of a US citizen spouse that would qualify for the marital deduction if a QTIP election is made or, if no election is made, would instead pass to a non-qualifying trust for the spouse that would use up the donor spouse’s lifetime exemption. This provides the donor spouse with flexibility either to make the QTIP election or not in the following calendar year when the related gift tax return is due, depending on whether any reduction of the gift and/or GST exemption amount is made retroactive to January 1, 2021.

Finally, an individual could consider making gifts utilizing a formula transfer clause. The donor would make a gift of a fractional interest of an asset where the numerator is the donor’s available exemption on the date of the gift and the denominator is the fair market value of the gifted assets, as finally determined for federal gift tax purposes. If the exemption amount on the date of the gift is retroactively reduced, the formula should “self-correct” so that the donor only gives away an amount equal to the donor’s available exemption on that date.

Takeaway Observations

As the last four years in general, and the last four weeks in particular, graphically have demonstrated, anything is possible. But panicked responses or knee-jerk reactions to what might happen never make sense. It is, of course, likely that taxes will go up. But in trying to assess the likelihood of dramatic or radical changes to existing tax laws, and the timing of any such changes, in order to make reasoned decisions, it may be helpful to keep the following in mind:

Joe Biden is a moderate Democrat.
The Biden Plan is a proposal that Biden campaigned on in order to garner as many votes as possible from voters ranging from moderate to liberal. It does not mean, once he is inaugurated, that he will necessarily propose every aspect of the Biden Plan.
Biden has a lifelong track record of forging compromises across both sides of the aisle.
Even in the absence of compromise, it is not clear that 100 percent of the Democrats in the Senate would support extreme or retroactive tax changes (there are a few “conservative” Democrats that may vote against it).
While everyone should be vigilant and prepared, there likely will be time to assess any proposed legislation and consider your options.
Countries in the rest of the world have been imposing wealth taxes, making expatriation more penal and requiring public registers of beneficial ownership. All of those items are absent from the Biden Plan.
As important as trying to anticipate change is, no one can predict the future. At least as important, if not more so, will be promptly and thoroughly reviewing your estate plans once change is enacted to make certain the plans still function as intended, in order to forestall dashed expectations and/or intra-family litigation.

Neil Carbone, Mackenzie Collins, Nancy Collins and Alexandra Copell contributed to this article.

ARTICLE BY David M. Allen, Mal L. Barasch,

Diane B. Burks, Lawrence B. Buttenwieser,

Jonathan C. Byer, and Michelle R. Canerday of

Katten

For more, visit the NLR Estates & Trusts section.

Want to Know if Your Employees Received the COVID-19 Vaccine? Some Best Practices to Consider

While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated.

The EEOC has provided some guidance on the issue:

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, based on the answer to the question posed above, we know the EEOC’s position is that asking or requiring employees to provide information on whether or not an employee was vaccinated is not a disability-related inquiry under the Americans with Disabilities Act (ADA). But that may not be the end of the inquiry. These are several considerations and best practices that organizations might consider before putting such requests to their workforce members.

Who wants the information, and why? As noted above, there could be several reasons for wanting to ask employees about their vaccination status. Those reasons can affect compliance and best practice considerations. For example, if an organization is working to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities, the organization might want to consider, among other things:
- Does it need to provide the information to the customer?
- Is consent/authorization necessary?
- How should the information be transmitted?
- Who at the customer would have access to that information?
- Will the customer safeguard it?
What steps can be taken to limit compliance risk? If an organization decides to ask workforce members about their vaccination status, there are steps it can take to minimize compliance risk. For instance, an organization can minimize the chance of an ADA violation by (i) designing the request so it is not likely to elicit information about a disability, (ii) not asking why an individual did not receive a vaccination, and (iii) warning the employee not to provide any medical information as part of the requested proof of receipt of a COVID-19 vaccination. Similarly, employers that are subject to the California Consumer Privacy Act (CCPA) and wondering whether their notice at collection to California employees needs to cover vaccination information may decide to provide notice in the abundance of caution.
Is it necessary to even ask employees directly…couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges? Aside from being arguably more administratively difficult, this method likely would be considered a violation of the HIPAA privacy rule. Plan sponsors may not use protected health information under HIPAA for an employment purpose without the employee’s authorization.
Does the collection and processing of vaccination information raise data privacy and security risks? Even if making the request is not a disability-related inquiry, it may be considered a medical inquiry, and the employee’s response, confidential medical information. While not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification may be required.

Additionally, statutory and common law obligations exist to require employers to safeguard employee personal information, which may include information about their physical health, such as vaccination status. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed or accessed by a third party.

These are just some of the issues organizations may find themselves grappling with as COVID-19 vaccinations become more available. Thinking them through carefully should help organization minimize their compliance and legal risks as they continue to manage their businesses through this pandemic.

ARTICLE BY Joseph J. Lazzarotti of Jackson Lewis P.C.

For more, visit the National Law Review Coronavirus News section.

How to Level Up your Law Firm Technology and Marketing in 2021

Welcome back to our short series on forming new habits in 2021. I hope you all were able to take the time to digest and truly think about implementing our first three habits at your law firms this year. If you missed out, go take a look at the first part of our new habits series and then come right back.

Today we’re going to talk a bit more about expanding the technical aspects of your firm in 2021, and how you can enhance what you’ve already learned throughout the trial and error of 2020.

Reduce Tech Costs With An All-In-One Operating System

You’re likely using several platforms or tools to run your practice and paying monthly SaaS fees for all of them. At some point in 2020 you likely looked at these expenses for opportunities to reduce your internal costs. This kind of regular belt tightening audit is important, but it’s even more important to make sure that you’re using the right tech that will get you the most bang for your buck.

Conduct an analysis of all of the tools you are using and paying an associated monthly fee. Eliminate tools you haven’t used in the past 6 months. If you’re using an all-in-one system, make sure you’re using all the included functionality instead of 3rd party providers. Are you paying a separate monthly fee for a CRM or payments tool? Taking advantage of all of the features offered by your all-in-one practice management system can help you cut the fat and reduce overall expenses while increasing efficiency.

Fill Your Marketing Pipeline & Develop A Growth Plan

Next, start to think about your firm’s future over the next year, including your pipeline of new business and growth plans for your internal team. Do you know which 2020 referral sources were the most fruitful? Make sure to nurture those existing referral relationships heading into the new year. A small gift, handwritten note, or phone call to wish the contact a happy new year is a great way to thank them while staying on their radar for future referrals.

As for new business, now is the perfect time to brainstorm new marketing channels to test in 2021. If there is a specific practice area that was especially profitable in 2020 perhaps you can get more involved with that practice group within your local or state bar association. Or maybe there is an upcoming (virtual) conference where you can showcase an area of expertise as a conference speaker. Many firms have found great success by experimenting with a small online marketing budget to make their firm’s name appear higher in search results or serve ads for their firm to a targeted audience. If you need a refresher, here’s our guide on SEO for lawyers .

With a plan to fill your referral and marketing pipeline in place, you should start preparing for growth. Construct a hiring roadmap and budget to create a clear plan to execute against your goals. Do you want to bring on a new partner with an existing book of business to help fill your client pipeline, or would it be best to hire and train an associate first? Do you need to hire new support staff like a receptionist or would it be more cost effective and efficient to use a virtual receptionist service? Being strategic in how you’re thinking about what you want to accomplish a year from now, and setting a systematic plan to get there, can help you stay on track as the year continues and distractions inevitably arise.

Level Up Your Zoom Game & Adjust To The “New Normal”

Whether you like it or not, the way we practice law has changed due to COVID-19 restrictions and it will never be exactly the same as it once was prior to 2020. Just as medical professionals have adapted to the rise in telehealth, more lawyers than ever before have moved to practicing law virtually. While some billable tasks will return to normal in a post-COVID world, the industry as a whole is realizing that we can do many things virtually for increased productivity and profitability as part of the “new normal”.

Many clients will likely prefer to meet virtually moving forward because of the convenience, while others will still need to do so depending on geographic location and local restrictions for at least part of 2021. It’s safe to assume that online video conference tools like Zoom aren’t going anywhere. If you didn’t use it before COVID restrictions began, you’ve likely used it since, and if you already used it, you probably are using it much more frequently than you did before.

You’ve also probably heard stories about some very embarrassing Zoom gafs over the past 10 months and we’d like to do our part to make sure you don’t become a cautionary tale. Remember, even though you are meeting with a client, colleague or co-defendant virtually, you still need to make a good impression and present as professionally as possible.

Make sure to dress as you would for an in-person meeting and make sure your visible work area is organized. Double check what your Zoom partner will see during the meeting when you turn on your video — do you like the background the client will see behind you on the call or do you need to adjust? Do your best to limit interruptions like loud pets or children (no judgement, I have both). Check the lighting to make sure the video quality is good and ensure your internet connection is working properly (pro tip: if you share your network with others in the household ask them to log off the WiFi to improve the signal strength for your video call). If not, you might consider purchasing an inexpensive desktop Zoom light, increasing your internet speed, or adding WiFi boosters to help improve signal strength for areas furthest from your router.

Don’t forget, most video conferencing tools have helpful built-in features that you may not be utilizing. If you’re using Zoom, try the “Touch Up My Appearance” option in your Zoom Settings – it’s like airbrushing for video calls and makes you look like you got 10 hours of sleep after a relaxing day at the spa. Lastly, if you are using Zoom for court appearances, mediations, or arbitrations, make sure you’ve got security settings like a virtual waiting room in place and learn how to properly use the break out room feature. Doing so will help you ensure client confidentiality is protected, even in a virtual setting.

Pulling It All Together

While these habits aren’t revolutionary by any stretch of the imagination, they are tried and true tactics which only require some extra time and effort to implement. By reducing your technology costs, creating your marketing and hiring roadmaps, and investing in your virtual presence, you’ll be well on your way to a successful and productive year and will thrive in the “new normal” of 2021.

ARTICLE BY Sarah Schaaf of PracticePanther

For more, visit the NLR Law Office Management section

IT Security Trends in the Era of COVID: Our Top Five Tips for Making Your Network Safer in 2021

As the COVID era drags on, it is clear that work life “post-COVID” may be very different from life “pre-COVID.” This is especially true as it relates to IT security. More and more employees have shifted to a telecommuting work model, and for many businesses that may be the case for an indefinite period of time. This raises important questions as to which security improvements or other changes IT departments need to make in 2021 to keep their businesses and client data safer from cyberattacks.

Here are five potential IT defense measures that your business can implement to protect your organization’s data as well as your clients’ data:

Ensure your network only accepts connections through an encrypted Virtual Private Network (VPN). Preparing your network for long-term telecommuting connectivity and ensuring that your employees can only access your company’s network by using an encrypted VPN is an important first step. When properly configured, VPNs provide an encrypted “tunnel” between an employee and the company’s internal network (and back), which provides a secure connection as employees continue to remotely access their employers’ networks over the long haul.
Invest in and enact mandatory multi-factor authentication techniques. Multi-factor authentication (MFA) involves validating the identity of a person and is critical to defending a network against many types of cyber threats, including phishing and credential stuffing attacks. MFA helps to protect against unauthorized network access even if an employee has had their account log-in credentials compromised. According to TechRepublic, the use of MFA increased by 18% in 2020. This also includes a 27% increase in the use of biometric data for security purposes. MFA has emerged as a key tool to combat the threat and expense of cyberattacks; as such, organizations of all sizes would be well served in making MFA implementation a top priority.
Implement mandatory employee social awareness training. According to the 2019 Verizon Data Breach Investigations Report, approximately one-third of all cybersecurity breaches stemmed from phishing attacks, with that number rising to almost 80% in cyber espionage attacks. There is no better time to prepare your employees on how to recognize and avoid phishing attacks. One cost-effective measure to combat phishing attacks is to tag all emails originating outside the company as “external.” This creates more awareness and helps to prevent employees clicking on bad links or opening infected attachments that appear to come from fellow colleagues.
Implement “layered” security for your network, also known as “Defense in Depth.” In addition to requiring a user to log in with solely their credentials, consider “layering” your network security by encompassing additional security measures such as MFA, password hashing and salting, biometric verification, application whitelisting and/or secure network logging and auditing. According to Help Net Security, in the second quarter of 2020, approximately 70% of all cyber-attacks involved “zero day” malware. This means 70% of all cyberattacks are using malware that does not yet have an anti-virus signature – a 12% increase from just the first quarter of 2020. To help defeat these “zero day” attacks, the more “layers” of network defense will work to strengthen a company’s ability to detect and prevent a developing cyberattack. Diversifying network defenses can pay dividends.
Recognize and minimize the insider threat. “Insider” cyberattacks have increased by approximately 50% over the last two years. According to the Verizon Data Breach Report, over 30% of all reported cyberattacks and data breaches are directly attributable to company insiders. To alleviate this threat, it is critical to have your IT department identify and eliminate employee “privilege creep.” Insider attacks often stem from employees having excessive access and privileges to parts of the company network to which they do not need access. In short, it is critical to take the time to ensure that employees only have access to the data they actually need, and nothing more.

This list is by no means exhaustive, and there are certainly many other tactics, defenses and strategies companies can implement to protect their networks and data from external and internal cyber threats and attacks. Nevertheless, these “top five” recommendations are foundational to any type of network security improvements and should be considered as part of any upgrades for network cyber defenses in 2021.

ARTICLE BY Jason G. Weiss, Peter Baldwin and Amy Grewal Dunn of Faegre Drinker

For more, visit the NLR Communications, Media & Internet section.

Political Action Committee & Personal Political Contributions Become the Next Reputational Challenge for Law Firms & Their Clients

Aesop perhaps said it best: “You are known by the company you keep.” It appears many organizations are learning the true meaning of that phrase in the wake of the Republican vote against certification of the Electoral College results and the January 6 U.S. Capitol riots.

In a mere week’s time, corporate giants including Marriott International, Dow, JPMorgan, American Express, Nike, Google, Facebook and Microsoft have publicly declared they are pausing contributions from their political action committees (PACS). They are joined by a growing chorus that contains some of the world’s most well-known brands. While most of these organizations have targeted the members of Congress who voted against certification, many are making larger declarations, including Charles Schwab, which announced it is shutting down its PAC and donating the money to charity and to historically Black colleges and universities.

Since the first PAC was established in 1943 by the Congress of Industrial Organizations after Congress prohibited unions from donating directly to political candidates, PACs have been a strategic tool to help law firms, corporations, banks, unions, trade associations and others achieve strategic business objectives affected by the laws and regulations that govern – or hinder – their growth. Corporate PACs, at companies like those listed above, rely on voluntary contributions from employees – and that is likely one of the reasons the decisions announced this past week came so swiftly. It is challenging to keep employees motivated – or to keep them at all – if they suddenly find that their own values are diametrically opposed to those held by the organization they work for.

For an example of how employee values can shape corporate decision making, read this piece we wrote when household goods retailer Wayfair ran into an employee buzz saw after it was discovered the company was supplying bedroom furniture to a federal detention center in Texas. Note too, this story describing the pullback by law firms including Porter Wright and Jones Day after colleagues in the firms raised concerns about their work on the 2020 election challenges.

Aside from employee pushback, the values of other stakeholders that organizations prize no doubt factored into the decisions regarding PAC contributions as well. Those important audiences include customers and clients, investors, suppliers and even the communities in which these organizations operate. Here, social media’s power to harness and broadcast stakeholder outrage are important factors for the PAC distribution committee to consider.

No doubt some of the PAC decisions also were colored by the fact that PAC contributions are now relatively easy to uncover. The Center for Responsive Politics, for instance, hosts a website that makes it easy to discover, by year, how much individual organizations have donated to which parties and to which House and Senate candidates or incumbents. Access to comparable information at the state level varies, but likely will move toward more transparency given recent events. All the above is true, as well, for individuals making political contributions, apart from their PAC contributions. A quick visit to www.fec.gov/data/ opens a page with a simple enter-a-name-here search box and within seconds, one can see campaign donations made by co-workers, friends, competitors, spouses, children, extended relatives and celebrities. Similar easy-to-search databases are available at the state level and most counties across the country.

Combine this access to information with social media’s role as the global town crier and it’s naïve at best to assume no one will notice an individual or PAC’s significant contribution to a recipient of note – especially one with a highly controversial position on high profile issues or a questionable voting record.

While there are many reasons why an individual or organization might decide to support a specific lawmaker, those reasons may not be as readily apparent to stakeholders (including employees), the media or the public. If yours is not one of the many organizations that have publicly announced that they are withdrawing some or all of their PAC support, now would be a good time to get ready to explain why you’ve supported the individuals you have, and what your path going forward may be. Here are some messages to consider:

How does this recipient’s voting record and position align with your organization’s mission and values? How have your contributions helped your organization grow and thrive so it can better serve its stakeholders?
If your organization has a strong commitment to corporate social responsibility, how do these contributions support that work?
If there are other reasons you support this individual, what are they?
If there are reasons why you no longer support this individual, what prompted you to end your support?

In a similar manner, if your organization took a public position in support of hot-button issues like Black Lives Matter and #MeToo, but your political contributions speak otherwise, how will you address that discrepancy (which is likely to be defined by others as hypocrisy)?

If your organization stands behind its record of political support, be prepared to defend that record with transparency and honesty. And, be prepared to do so before media and social media seize the advantage they have in galvanizing opinion quickly. While your PAC – or the personal checks you’ve written – may be only one small portion of your organization’s government affairs program, these days, it’s the one everyone seems to be talking about.

The views and opinions expressed in posting are those of the author and do not necessarily reflect the views or position of the National Law Review, the National Law Forum LLC or any of its affiliates.

ARTICLE BY Bruce M. Hennes of Hennes Communications

Can Employers Fire Rioters? Employers’ Rights in Policing Employee Off-Duty Conduct and Employment Law Consequences of the Capitol Riots

Within days of the January 6, 2021, riot at the U.S. Capitol, employees who were observed as part of the mob entering the Capitol were discharged by their employers. Some of the individuals involved in the events at the Capitol were knowingly filmed as part of the insurrection (and many were seen posing for selfies).

A photograph of a rioter wearing clothing with the word “Auschwitz” prominently displayed has been widely disseminated. Other rioters were photographed and videoed carrying Confederate flags or nooses. In some instances, employers saw images of their employees and took action in response. For example, one rioter was reportedly discharged by his employer after an image circulated of him storming the Capitol while still wearing his employee badge around his neck.

In addition to those who directly participated in the breached at the Capitol, before and after the riot, employees discussed—on social media—the events and expressed their views in support of or in opposition to the insurrection, or on the issue of wearing masks or shirts expressing threatening or offensive views.

Even if most of the conduct occurred outside the workplace, coworkers—and often community members—who have seen images of employees involved in the riot, expressing support for the riot, or wearing masks or clothing with some of the messages of the rioters, are voicing complaints to employers.

Private employers have significant discretion to discharge employees, even for off-duty conduct, especially conduct that is unlawful. While public employers may have less discretion, they tend to have more rules that specifically outline what constitutes unlawful off-duty behavior. And while some states have laws that protect political speech or lawful off-duty conduct, those laws would not protect employees from discharge for their illegal or violent conduct or threats. Most states, for instance, would not prohibit employment actions based on some of the clothing with logos and insignias that rioters were wearing. The following are answers to frequently asked questions about these issues.

Do private-sector employees have free speech rights to make anti-Semitic, racist, or other inflammatory statements or social media messages?

No, not under federal law. Employees often have the mistaken belief that their statements enjoy blanket protection under the First Amendment. The First Amendment specifically prevents the federal government from interfering with freedom of speech, but it does not guarantee that right in private settings, including in private workplaces (and social media platforms). Therefore, a private-sector employee’s speech (whether made in person or in writing on social media) are not shielded from employment consequences under the mantle of freedom of speech. Such employee expression would also include the wearing of t-shirts, sweatshirts, or masks with offensive or harassing messages, as were seen in images from the Capitol riot. With the rise of social media, employers have quickly become aware of employees’ off-duty behavior from the reports of other employees. After the neo-Nazi, white-supremacist rally in Charlottesville, Virginia, August 11–12, 2017, it took only a few hours for participating individuals to be identified and for employers to be called to take action against them.

Note that Connecticut state law extends freedom-of-speech protections to private employees. As noted below, other state laws prohibit discrimination based on lawful off-duty conduct, which could include speech. Even there, in the case of the riot at the Capitol, an employer might be able to take action based not on an employee’s speech but based on the employee’s unlawfully entering of the Capitol building.

Can employers discharge employees for off-duty conduct?

It depends. Some states have laws that ban employers from taking adverse employment action against employees based on lawful off-duty conduct. Presently, California, Colorado, Louisiana, New York, and North Dakota prohibit employers from firing or retaliating against employees for off-duty lawful activity, including speech. Arguably, this could include conduct that their employers and coworkers may find offensive. However, even in these states, illegal conduct, including unlawful entry into the U.S. Capitol, looting, or violence, would not be protected.

In the remaining states, laws do not exist that would preclude an employer from taking action against an employee based upon the employee’s off-duty conduct.

In fact, employers may face legal, reputational, and cultural risks by ignoring off-duty conduct, especially where the conduct may constitute harassment of a member of a protected class. For example, some rioters were seen carrying the Confederate flag, brandishing nooses, and wearing t-shirts or displaying tattoos with unquestionably offensive—and in some cases threatening—slogans like “Camp Auschwitz.” Rioters also apparently erected a gallows with a noose outside the Capitol. These symbols and messages are historically significant and threatening based on race and religion. Images of a coworker carrying or wearing these symbols may cause other employees to be uncomfortable in the workplace, and, in most states, may form the basis for employment action.

Can employers discharge employees who participate in protests?

It depends. Employees who participate in legitimate, peaceful political protests are protected by law in over a dozen states and jurisdictions, including in California; Colorado; Guam; Louisiana; Minnesota; Missouri; Nebraska; Nevada; South Carolina; Utah; West Virginia; Seattle, Washington; and Madison, Wisconsin. Those jurisdictions bar employers from retaliating against employees for engaging in political activities. New Mexico protects employees’ right to express their political opinions. As previously noted, some jurisdictions protect employees’ lawful off-duty conduct, including speech. Other states and jurisdictions—including the District of Columbia, Illinois, Iowa, Louisiana, New York, and Utah; Puerto Rico; the U.S. Virgin Islands; Broward County, Florida, and Urbana, Illinois—specifically prohibit employers from discriminating against employees based on their political party membership, election-related speech, or political activities.

However, the events of January 6, 2021, went beyond a political protest to illegally storming the Capitol. Such illegal conduct would not be protected. Further, threats and expressions of racist violence or harassment are not political speech. So while employers may consider applying their policies and expectations consistently to peaceful protesters on different sides of an issue, conduct that is not comparable (e.g., storming into the U.S. Capitol as compared to peacefully attending a rally) need not be treated the same. After the events that occurred in Charlottesville, Virginia, in 2017, employers have grappled with how to make sure that they are protecting their employees and their companies’ reputations while not disciplining employees for lawful off-duty conduct.

An employer may wish to consider various factors prior to taking adverse action against an employee for off-duty activity, including how the employee’s conduct may reflect on the company and its employees. Such considerations may also include whether employees will be required to work with a coworker who has made offensive, racist, discriminatory, or hateful comments regarding an employee’s immutable characteristics, such as race, sex, or sexual orientation. More importantly, an employer may want to consider whether the employee engaged in violent conduct such that the employee will be seen as having a propensity for violence that could make coworkers feel unsafe. Moreover, this violent off-duty conduct could put the employer on notice and potentially give rise to negligent retention claims.

In sum, employers may want to assess the potential damage to a company’s culture and reputation (both internally and externally) that may follow from condoning or condemning employee comments and conduct. Many employers have chosen to err on the side of standing up against racism, anti-Semitism, and threats to safety and democracy.

ARTICLE BY Sarah J. Platt and Jimmy F. Robinson, Jr. of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more visit the NLR Labor & Employment section.

Legal Ramifications of Flouting Mask Rules by Members of Congress

During the invasion of Congress on January 6, 2021, members of Congress were forced to take shelter for a few hours with a large group of their colleagues. Several Democratic members of Congress—Reps. Bonnie Watson Coleman (N.J.), Pramila Jayapal (Wash.), and Brad Schneider (Ill.)—have revealed that they have tested positive for COVID-19 after sheltering with colleagues who refused to wear masks. There have been rules in place since July 2020 that require masks in House office buildings and on the floor of the House, but those rules have not been consistently enforced. A number of House Republicans did not wear masks during the emergency sheltering and refused to accept masks offered by Rep. Lisa Blunt Rochester (Del.). House leadership has committed to enforce the rules more stringently going forward and impose fines starting at $500 on members who do not wear masks on the House floor. Democratic Representatives Debbie Dingell (Mich.) and Anthony Brown (Md.) have introduced legislation that would go farther, imposing fines of $1,000 per day on House members who do not wear masks on the Capitol grounds.

But do representatives who have contracted COVID-19 have any legal remedy for holding the House or other individual House members liable for their having contracted the virus?

First, it is important to note that no one can say with certainty when, where, or how they contracted the virus. Representative Schneider has acknowledged directly that he does not know that he contracted the virus during the insurrection, but that his exposure during the shelter in place was the greatest exposure he has experienced during the pandemic. He surmises that the fact that three people (thus far) have tested positive points to the forced sequestering with unmasked colleagues as the probable source of infection. There has been no reporting on whether the Republican members who refused to wear masks have tested positive for the virus, making the proof of the source of the infection more challenging.

Second, even assuming the newly infected Representatives could establish they contracted the virus from unmasked colleagues on January 6, their legal remedies are extremely limited. While employees in the private sector could complain to the Occupational Safety and Health Administration (OSHA) about unsafe working conditions, the Occupational Safety and Health Act (29 U.S.C.§ 654) does not apply directly to the U.S. Congress. Under the Congressional Accountability Act (CAA), 2 U.S.C. § 1341, the legislative branch is required to comply with OSHA standards mandating that the workplace be free from recognized hazards likely to cause death or serious injury. Under the CAA, a member of Congress or a staff person can request that the General Counsel of the Office of Congressional Workplace Rights (OCWR) conduct an inspection of unsafe working conditions. If the inspection determines there are unsafe working conditions, the OCWR General Counsel can issue a citation or notice of violation. If the violation has not been corrected after that notice, the General Counsel may file a complaint to be submitted to a hearing. Currently, even without a formal complaint to the OCWR, Congress has taken steps to more rigorously enforce its rule requiring masks in congressional workplaces.

Third, assuming a member of Congress who contracted COVID-19 could prove he or she was infected by a specific colleague who was not wearing a mask, legal recourse against that colleague would likely be barred by the terms of the Speech or Debate Clause of the U.S. Constitution, contained in Article I, Section 6. This clause states that members of both Houses of Congress “shall not be questioned in any other Place” about any speech or debate and shall be “privileged from Arrest” during attendance at a session of Congress. The limitation on questioning a member of Congress about speech or debate is intended to protect them from efforts by members of the Executive branch or members of the public to interfere with their exercise of their legislative duties. The refusal to wear a mask might not be seen as an aspect of legislative debate, but at least one Republican who refused to take the mask offered by Representative Rochester was heard to say she did not want to make this “political,” and those who refuse to wear masks may assert that they do so for political reasons.

If the Speech or Debate Clause did not bar a suit by one Representative against another, the legal claim would likely be one for tort damages related to an intentional assault, which requires proof that an individual deliberately acted to cause another to fear imminent harm. There have been numerous tort cases filed against cruise ships, nursing homes, and entertainment venues by people exposed to COVID-19. Suits against individuals are rare, but might follow the theories advanced by individuals exposed to the Human Immunodeficiency Virus (HIV). HIV cases ordinarily involved battery claims because of the means of transmission through close bodily contact, but because COVID-19 is transmitted through airborne particles, liability would not necessarily be predicated on physical contact but merely the apprehension of contracting the airborne virus.

Establishing liability for COVID-19 infection is difficult in any workplace. As in many other areas of employment and tort law, imposing liability on members of Congress is even more challenging. In the absence of targeted legislation, members of Congress may have little recourse against colleagues who expose them to a greater risk of infection by their refusal to comply with basic health and safety practices during the pandemic.

ARTICLE BY Carolyn Wheeler of Katz, Marshall & Banks, LLP

For more, visit the NLR Coronavirus News section.

Five Tips for Selecting the Best FTC Defense Lawyer for Your Case

An experienced attorney is all but imperative for individuals and businesses facing an investigation by the Federal Trade Commission (FTC). FTC investigations are very nuanced and involve complex issues that are unfamiliar to most. However, not all FTC defense lawyers offer the same value to those facing an FTC investigation.

If you or your business is under investigation by the Federal Trade Commission, you should be sure to hire an experienced FTC defense attorney. The more experience an attorney has, the more likely they will have handled a case very similar to yours, giving them a unique perspective on what you can do to quickly and efficiently wrap-up the investigation.

As Dr. Nick Oberheiden, Founding Attorney of Oberheiden, P.C., recently explained:

FTC investigations are complex, and while there are many attorneys who are willing to take on these cases, clients should be selective when deciding which FTC defense firm to work with. Clients are best served by selecting an attorney who has worked with businesses in the same industry, and successfully handled similar investigations in the past. Otherwise, clients run the risk of needing to pay their attorney to get up to speed or—worse yet—having an attorney who is unprepared to handle their case.

Here are a few tips to consider when deciding which FTC defense attorney to hire to represent you in your case:

1. Inquire About Their Experience

A quick Google search for FTC lawyers provides dozens of law firms vying for your business. Many of these firms will tout “years” or “decades” of experience. However, only very few FTC defense firms routinely handle active FTC investigations. When meeting with an attorney, be sure to ask them where all their experience comes from. In many cases, you’ll find out that these attorneys handle a wide range of seemingly unrelated matters. When dealing with such a complex area of law, having specific, hands-on experience is critical to the success of your case. You wouldn’t trust your primary care provider to perform brain surgery, and you shouldn’t let a general practitioner handle your FTC investigation case.

2. Ask Out Who Will Handle Your Case

Many FTC defense and compliance law firms list only the most experienced or successful attorneys on their websites. When you set up a consultation to speak with a lawyer, you may even meet with a partner or senior associate. However, that is not necessarily the lawyer who will be handling your case. When you hire a law firm to represent you in an FTC investigation, you are hiring the firm. It is then up to the firm to decide which attorney is going to handle your case. Unless you ask, a firm is under no obligation to tell you who you will be working with.

Some FTC defense law firms actually have former U.S. Attorneys, Department of Justice trial lawyers, or other law enforcement officers or prosecutors. Having an attorney who has worked on the enforcement side of an FTC investigation can provide you with extremely valuable insight, as they know how the FTC sees certain issues and makes decisions.

When meeting with an FTC defense lawyer, it is important that you ask which of the firm’s attorneys will be handling your case. This is important because you don’t want to be under the impression that you’re going to be working with (and paying for) a high-level attorney, only to find out that they assigned your case to a new associate.

3. Find Out if They Have Handled Similar Cases for Other Clients

Not all FTC investigations are the same. It is critical that you choose an FTC defense attorney who is not only experienced handling the specific type of investigation you are facing, but also one who has worked with similar businesses in the past. The more a lawyer knows about your underlying business, the better they will understand the nature of the potential violation and how to defend against it.

The nature and extent of an FTC investigation will depend, in part, on the type of potential violation, but also on the nature of the business, the FTC is looking in to. When selecting an attorney to represent you in an FTC investigation, it is imperative that you work with a lawyer who has specific experience helping clients who were in a similar situation to the one that you find yourself in. For confidentiality reasons, don’t be surprised if a lawyer cannot give you the specific names of parties they represented, but they should be able to give you details about former clients’ cases, how they were able to help, and what the outcome of the investigation was. If an attorney seems uncomfortable discussing this with you, chances are that they don’t have experience working with similar businesses.

4. Ask About Their Track Record

When meeting with a lawyer, don’t be afraid to ask them about the outcomes of their previous cases. You want to hire a lawyer who is not only experienced, but also who has been able to effectively wrap-up an FTC investigation for their clients. A lawyer may not be able to get into specifics, but they should be able to tell you how they helped other clients in similar situations deal with the FTC investigation, and the outcome of those cases.

5. Make Sure You Get Along

This may go without saying, but you will be working closely with your attorney throughout the FTC investigation process. For many clients, being able to get along with their lawyer is a critical part of this process. Personalities differ, and a successful attorney may be great at handling the FTC lawyers, but, if they are hard to work with, you are losing out on one of the benefits of working with a lawyer: peace of mind. An experienced FTC defense attorney can provide you with much-needed peace of mind through what is invariably a stressful process. If the thought of picking up the phone and calling your attorney causes you stress, you’re already not getting everything you deserve.

If you or your business is facing an FTC investigation, don’t take on the FTC alone. An attorney can make your life much easier, and help you work towards a favorable outcome. When selecting an attorney, take your time, because this is a major decision that is worth devoting as much time as necessary to get right.

ARTICLE BY Dr. Nick Oberheiden from Oberheiden P.C.

For more, visit the NLR Corporate & Business Organizations section.

Stimulus Bill Extends the Availability of Student Loan Forgiveness (US)

Section 2206 of the CARES Act allowed an exclusion of up to $5,250 from an employee’s gross income, if an employer paid principal or interest on an employee’s “Qualified Education Loan”.

Section 2206 of the CARES Act was only designed to be in effect for calendar year 2020. However, The Consolidated Appropriations Act, 2021 (the “CAA”) extends this provision of the law through December 31, 2025.

This provision of the CAA is in Section 120 of Division EE, called “The Taxpayer Certainty and Disaster Tax Relief Act of 2020”.

It does not appear that during 2020, many employers decided to provide student loan forgiveness as an employee benefit. Given the pandemic, that is certainly understandable. However, going forward, it might be something that employers might find more attractive as a recruiting or retention tool. Thus, the following is a brief refresher on this benefit.

Code Section 127 – Education Assistance Programs

Internal Revenue Code (the “Code”) Section 127 has for a very long time, provided an exclusion from an employee’s gross income for reimbursement provided to the employee under an employer’s “educational assistance program”. The maximum amount of tax-free reimbursement is $5,250 per calendar year.

The employee’s education under the program may be reimbursed without regard to whether it relates to the employee’s employment. However, the educational expenses cannot pertain to a sport, game or hobby.

The CARES Act

Section 2206 of the CARES Act amended Code Section 127 to allow an employer to pay for all or part of an employee’s “Qualified Education Loan” as a tax-free benefit, provided that benefit is provided as part of an employer’s education assistance program.

An important point to note is that the employee would not have had to incur the educational expenses while that person was an employee of the employer.

For example, an existing employee with student loan debts that were incurred prior to be being hired, can have that debt forgiven under the plan. Likewise, a newly hired employee with pre-existing student loan debt can also have that debt forgiven under the plan.

Code Section 127 – Employer Plan Requirements

Under Code Section 127, the employer must establish a written plan and communicate the terms of that plan to eligible employees. In addition, the Plan must satisfy the following requirements:

The terms of the Plan cannot discriminate in favor of highly compensated employees (“HCEs”).
For this purpose, Code Section 414(q) is referenced. In 2021, an employee is an HCE if he or she had compensation of more than $130,000 in 2020. 5% owners of businesses are also considered to be HCEs.
Collectively bargained employees must be considered in determining nondiscrimination eligibility requirements, unless educational assistance benefits were the subject of good faith bargaining.
Controlled group rules apply for testing nondiscrimination.
The calendar year $5,250 maximum exclusion for loan forgiveness must be combined with any other educational assistance that is provided to the employee under the employer’s Code Section 127 plan for that calendar year.
The plan cannot permit an employee to choose between taxable compensation and benefits and the educational assistance. Thus, an employee cannot elect salary reduction as a means of participating in the Section 127 plan. Simply put, the benefits under the plan have to be employer paid benefits.

Qualified Education Loans

The rules that define what will qualify as a “Qualified Education Loan” are somewhat complex. The IRS advises taxpayers to review Chapter 4 of IRS Publication 970.

However, in general, the loan had to be incurred for the employee’s costs of attendance (i) in pursuit of a degree, certificate, or other program that would lead to a “recognized educational credential”, and (ii) while carrying a course load at least one-half (1/2) of the normal course load for that particular course of study.

Loans from the government or a financial institution are fine. Loans from family members don’t qualify. Loans from tax-qualified employer retirement plans (e.g. 401(k) Plans) don’t qualify.

Attendance at an “eligible education institution” is required. In general, this will include all colleges, universities, vocational schools and other post-secondary institutions that are eligible to participate in the federal student aid program.

Costs of attendance at the eligible education institution include tuition and fees, books, supplies, transportation, miscellaneous personal expenses, room and board and various other costs.

ARTICLE BY Gregory J. Viviani and Joseph P. Yonadi, Jr. of Squire Patton Boggs (US) LLP

For more, visit the NLR Coronavirus News section.

Esports: What We Should Expect in 2021

The esports ecosystem experienced transcendental growth in 2020 due at least in part to the Covid-19 pandemic, and is poised to act as a spring board for even further growth this year. With traditional sports largely sidelined last year, stadiums closed to fans, and people starving for personal interaction, gamers and spectators alike have turned to esports in record numbers. According to Newzoo, a prominent esports analytics company, 22% of the internet population participates in esports, and global gaming revenue is expected to hit $159 billion by the end of 2020.^[1]Streamers and streaming platforms have exploded in popularity, allowing streamers to earn income from broadcasting their live gameplay, interact with fans and engage with other players.

Building on the tremendous growth in 2020, here are some trends that some prominent members of the esports community are forecasting for 2021.

Significant Shift in Brand Advertising.

Enthusiast Gaming, a North American gaming platform went entirely virtual in 2020 and sponsored a four-day free EGLX tournament in November, 2020 that was watched by over 12 million people around the world.^[2] SpiderTech, and G Fuel were among the key sponsors of the event, which featured musical performances by Zhu and Goldlink and virtual appearances by athletes Richard Sherman and Darius Slay.^[3] With the enormous success of events such as EGLX, and esports audiences continuing to skyrocket, Enthusiast Gaming forecasts that mainstream brands will significantly increase their advertising spend to sponsor esports tournaments and events as a necessary means to engage with that tough-to-reach Gen-Z audience.^[4]

Convergence of esports with Mainstream sports.

Other industry experts have predicted that the world will see also greater convergence between traditional sports and esports, with professional football teams launching their own esports teams.^[5] For example, in December 2020, the Philadelphia Eagles named Esports Entertainment Group (“EEG”) as their official esports tournament provider.^[6] As part of a multi-year deal, EEG will operate bi-annual Madden esports tournaments for the Eagles.^[7] EEG will collaborate with Eagles players to create videos to promote the tournaments and will feature Eagles players in increased digital marketing efforts. First-movers such as the Philadelphia Eagles are likely to spawn increasing connectiveness between esports and traditional sports teams.

Growth of Esports in Popular Culture.

On April 24, 2020, more than 12 million people attended rapper Travis Scott’s virtual concert in Fortnite.^[8] Last year, FaZe Clan, one of the world’s most popular and successful professional gaming teams, entered the film industry and formed FaZe Studios, which plans to create feature films and a scripted television series.^[9] In June, 2020, FaZe Clan also announced its co-ownership of CTRL, a food supplement company.^[10] Earlier this year, the NBA sponsored the first-ever players-only esports tournament in which sixteen NBA stars competed in an NBA2K20 tournament on Xbox, won by Devin Booker, who earned $100,000 to donate to the charity of his choice.^[11] Based on the success of events such as these, 2021 is likely going to experience a surge in the integration of esports with popular culture, as the music, apparel and film industries seek to integrate themselves into gaming communities through in-game interactions.^[12]

Increased Fragmentation and Evolution.

Other industry experts such as Spiketrap have observed that more and more people are streaming a greater variety and volume of content than ever before.^[13] For example, according to one source, 42% of the U.S. population has live-streamed online content (compared with just 25% in 2017), and live-streaming is expected to be a $70.5 billion industry by 2021.^[14] Spiketrap predicts greater fragmentation in the esports industry created by the explosive growth in the source, variety and content of live-streaming.^[15] Musicians, athletes and other content creators will need to find a way to integrate and leverage live-streamed content with their own to better connect and expand their relationships with fans and spectators.

Increased Participation in the Ecosystem.

Still other industry experts have observed an unprecedented increase in player participation within the esports ecosystem. Esports One, for example, has witnessed a rampant rise in virtual currency, rankings, badges, skins and image banners, as player-members seek to “flex” their muscles and show off their skill to their friends and fellow competitors.^[16] As esports mature, and more games are supported by more titles, Esports One predicts that there will be more opportunities for sponsorships, integration, and tournament prizes.^[17]

In short, as tumultuous and dynamic as 2020 was socially, politically and epistemologically, 2021 promises to be an unprecedented year in the esports world.