Missed sending Disclosure

[shadowgun1102]

A 401k plan converted from one investment product to another product with the same recordkeeper.    A couple, but not all, funds in the plan's core lineup changed and the account number changed.   Discovered that the notice to the participants announcing the change was not delivered.   Is the fix to forward the notice now to communicate the change?   What other correction would / should be made?   Thank you

I googled on the topic, but did not find this situation addressed in the 401k fix-it guide and no articles or citings came up regarding the specific topic....

[Luke Bailey]

shadowgun1102, that's the only "fix" I can think of. Maybe also pray that the discontinued funds didn't outperform the replacements significantly.

[Roycal]

Communicate the fund changes asap (in detail -- the more detail, the better).  Second, find out who failed to make the timely communication about the changes, and take him, her or them off any plan responsibility.  To keep them in place for a plan responsibility would likely be a fiduciary breach in and of itself, since his, her or their failure was egregious in the extreme.  Check the 404(c) regs and any case law (not likely to be anything significant directly on point, but who knows).  Luke Bailey suggests that the guilty parties pray.  I can't disagree with that, although if the substitution was done "prudently," performance should not matter (but still may in the eyes of some).  Next, suggest the employer check with its ERISA legal counsel, if they have one they regularly use.  Finally,  I am not a lawyer and so none of this is legal advice. 

[Bird]

15 hours ago, Roycal said:

Second, find out who failed to make the timely communication about the changes, and take him, her or them off any plan responsibility.  To keep them in place for a plan responsibility would likely be a fiduciary breach in and of itself, since his, her or their failure was egregious in the extreme.

That's a little extreme, no?  I think it is sufficient to "install procedures" to make sure it doesn't happen again.  If we were to take everyone off of any plan responsibility every time they failed to do something, there wouldn't be anyone left.

15 hours ago, Roycal said:

if the substitution was done "prudently," performance should not matter

That's a really good point.  I agree that it would look bad if the new funds underperformed the old, but short term performance shouldn't be the criteria for determining whether a decision was good or bad.  (And yet, that's what drives a lot of what passes for "expert" analysis.)