Different investment options for controlled group plan.

[Guest]

Company A in state 1 owns Company B in state 2. A single 401(k) plan document covers both companies. Currently, the plan offers multiple investment options with Mutual Fund Family ABC. Company A wants to Switch to Mutual Fund Family DEF. Company B wishes to stay with Mutual Fund Family ABC. Does anyone see any problems with this arrangement? Any fiduciary or 404© issues? Would splitting into two identical plans make a difference? Thanks.

[KJohnson]

The right to an investment option is a benefit right or feature that must be tested under 401(a)(4).

As to the fiduciary and 404© implications, the ongoing First Union litigation may give you a framework to go by.

[Alan Simpson]

Assuming that you are using an TPA for the plan why not make the funds from companies ABC and DEF available to all participants. That way they can individually choose which fund the wish. Of course, the TPA may not allow this, but this is an easy solution to the problem if it will work.