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No problem at all from my viewpoint. Many documents (Relius, for example) you would just specify the effective dates of those changes in the Appendix. So you restate 1/1/2022, with one or more provisions in the restated document not taking effective until 8/1/2022, as noted in the Appendix.

Peter, that is what I was researching, my co-fiduciary responsibilities under ERISA 405. I was hoping you would chime in, thank you!

probably not necessary unless some are over comp limit and others under. that way each is limited to same max % rather than same dollar amount. example above, but assume the $60k HCE was owner's son. if small plan, consider SH and avoid that worry altogether.

I would actually want to be covered by PBGC. For a really small PBGC premium payment, you get full 401k/PS/CB deduction.

Not in the M&A context. Treasury Reg. 1.401(k)-3(e)(4) allows the sponsor to terminate a safe harbor plan during a plan year. Within that subsection, (i) describes the normal, non-M&A termination rule, which does require 30 days' notice (by reference to the requirements of subsection (g)) but (ii) allows the plan to be terminated in connection with an M&A transaction without imposing any notice requirement (either directly or by reference to (g)).

In my recent experiences, people in retirement-services providers have become so accustomed to so many things that call for 30 days’ notice that some of those workers reflexively presume any change calls for some notice. Usually, they back off if the sponsor/administrator points out the absence of a statute or rule that requires notice. But a service provider’s agreement might not obligate the service provider to process something as quickly as relevant law allows and the sponsor/administrator might prefer.

Without stating any conclusion or point of view, here’s another mode for analysis: Even if you consider the possibility that the plan’s administrator furnished proper notices to everyone eligible and not one did not opt out, the facts you describe suggest circumstances in which a prudent fiduciary might not close its eyes to the obvious, and, absent the other fiduciary’s written assurance of facts that would show no breach, might further investigate the facts. The investment adviser should want its lawyer’s advice about how to evaluate the situation to consider what to do next. With your lawyer’s advice, consider: Of the TPA and the investment adviser, is one of those companies or operations a fiduciary? If the services are provided by one company, would the law treat one operation’s knowledge as the company’s knowledge? Or if the services are provided by companies that are commonly controlled (and perhaps have some workers or executives in common), might the law impute one company’s knowledge to another? Even if the governing documents and their ERISA §§ 402-405 allocations make clear that a fiduciary has no direct responsibility for collecting contributions, every fiduciary has co-fiduciary responsibility. Even if a fiduciary does nothing to enable another fiduciary’s breach, knowledge imposes a responsibility: ERISA § 405 [29 U.S.C. § 1105] Liability for breach of co-fiduciary (a) Circumstances giving rise to liability In addition to any liability which he may have under any other provisions of this part {ERISA §§ 401-414}, a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the following circumstances: (3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach. Mere resignation is, at least in the Labor department’s view, not enough effort to remedy another fiduciary’s breach. Further, a fiduciary’s resignation (without other steps) might be imprudent, especially if the resignation would increase a breaching fiduciary’s control or make it likelier that no one calls attention to the breach. One unpublished trial-court decision included a finding of fact, without analysis, that a fiduciary made reasonable efforts to remedy another fiduciary’s breach by promptly filing a Federal court proceeding against the breaching fiduciaries. In the range between those points, there is no published Federal court decision that interprets in meaningful detail what steps are enough to prove an observing fiduciary used “reasonable efforts” to remedy another fiduciary’s breach. Is informing the Labor department enough? (If there is a co-fiduciary responsibility, doing nothing is not enough.) If there was a theft and it becomes detected, a plaintiff might pursue everyone that has collectible assets. Yet, many service providers dislike blowing the whistle on a client or customer. So, even if there is a co-fiduciary responsibility, the TPA and investment adviser might want their lawyer’s evaluation of the size of potential liability exposure and how probable or improbable it is that the adviser will become liable.

Do you mean Section 89? Lots of people bet a lot of time and money on that.

I just heard from FT William. They say I should draft the restatement exactly as Belgarath suggests above. Thanks Belgarath.

don't try this at home.... so, while I'm not collecting Soc Sec yet, June 1 I was within 3 months of my 65th calendar year birthday. And as such, that is the earliest date to start the application for Medicare. Supposedly, if you have set up an account on the soc sec website, you can apply there. tried that, the only thing that shows up asked for my medicare number which I don't have so that was no good. So I called Medicare and they set up an appointment, but that call would be late July. I then went to the Medicare site to try to apply on line, and...it gives a link to go through soc sec. When I clicked on that I was back to my soc sec acct, but this time there were a bunch of questions about filling out on line for Medicare. go and figure. A few days letter I received indicating the phone appointment was cancelled. then I received another letter indicating the medicare card would be sent in 2 weeks. And another letter checking to see if I was eligible for supplemental drug coverage. and today, my card arrived at my brothers address...My brother called them and they have no idea why the card was sent there. Seeing how I already received 3 pieces of mail from them, this is a great puzzle. well, at least I do have a number. Now I can get signed up with a health insurance company for supplemental coverage. At the rate I am going, I might just have everything in place by my 65th birthday. I guess word to the wise, start your application at the earliest possible date. good grief.

See their release on June 9, 2021. Announcement as well as video tutorial: DC Compliance Enhancement - Non-Elective Allocation by Division

Good to highlight that point, Appleby.