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Inadvertent Error on 404(a)(5) Notice


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404(a)(5) notices went out to participants within the 30/90 day window prior to first investments. Unfortunately, the notices inadvertently included two investments that were not actually available to participants. My question is, if we send out corrected notices, does the the 30-day clock restart? or can we simply send out a corrected notice and still utilize the original 30-day window? Also, could this possibly qualify for the unforeseen circumstances exception that is provided for in 404(a)(5) (I've heard this is interpreted very narrowly by the DOL)? The Regs appear to address this type of good faith error from a 408(b)(2) perspective but not a 404(a)(5) perspective.

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Are they on the enrollment/election forms?

If not I'd send a supplemental notices that says something like "While the information on ABC and XYZ mutual fund on the prior notice is correct, please note that the Plan has not made either of these investments available to Plan participants. Please disregard information on these two funds. We apologize for any inconvenience" and call it a day.

If the funds are included on enrollment materials, then I think you start a new clock.

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