- 14 - direct us to any authority that supports the argument that his waiver in the instant cases is valid so long as they were knowingly and voluntarily made. We agree that when the antialienation rule does not apply, any waiver or alienation must be knowingly and voluntarily made. Pursuant to ERISA section 201(2), the antialienation rule of ERISA section 206(d)(1) does not apply to “a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees”; i.e., a “top hat” plan. 29 U.S.C. sec. 1051(2) (1994); see also Modzelewski v. Resolution Trust Corp., 14 F.3d 1374, 1377 n.3 (9th Cir. 1994) (referring to the characteristics of a “top hat” plan). However, the plan under consideration is overfunded and covers both petitioner and rank and file employees. Therefore, whether petitioner’s waiver was knowingly or voluntarily made is of no consequence because the plan was not a “top hat” plan. Ferris v. Marriott Family Restaurants, Inc., supra. Petitioner relies heavily on the fact that the PBGC issued a “Notice of Sufficiency” to GCI which stated that, insofar as it was concerned, the Plan’s termination was acceptable. Petitioner’s argument assumes that any Government approval cures a statutory defect. The PBGC was created to ensure that participants in private pension plans would receive the benefits for which theirPage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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