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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 their
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