ERISA Blackout Notice Apply to Top Hat Plan?

[benefitsguru]

Does a notice have to be provided to participants in a non-qualified individual account plan for which a top hat filing has been made? No per 2520.104-23? Thanks in advance for any guidance!

[jpod]

I don't know what the precise authority is but since there are no plan assets (or at least there better not be) isn't the answer obvious?

[Peter Gulia]

Before one too quickly assumes that no notice is needed, ask for your lawyer's advice about law beyond ERISA, including:

Would failing to give notice breach a provision of the deferred compensation agreement or some other contract?

Most contracts are deemed to include an implied obligation of good faith and fair dealing, which often is interpreted as obligating a party not to act in a way that deprives or interferes with another party's opportunity to exercise his, her, or its rights under the contract. Would failing to give breach such an obligation?

If a right or interest under the plan is a security, does anything in securities law call for a notice or disclosure?