                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-2040


DENNIS P. BRADY,

                Plaintiff - Appellee,

           v.

THE DOW CHEMICAL COMPANY RETIREMENT BOARD; UNION CARBIDE
EMPLOYEES' PENSION PLAN, formerly known as Retirement
Program Plan for Employees of Union Carbide Corporation and
its Participating Subsidiary Companies,

                Defendants - Appellants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Robert C. Chambers,
District Judge. (2:06-cv-00025)


Argued:   December 3, 2008                 Decided:   February 18, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and Rebecca Beach
SMITH, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Matthew Martin, PAUL, HASTINGS, JANOFSKY &
WALKER, Atlanta, Georgia, for Appellants. John Francis Dascoli,
Charleston, West Virginia, for Appellee.     ON BRIEF: Erin E.
Magee, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Appellants.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               This appeal involves a dispute about whether the Dow

Chemical Company Retirement Board (the “Dow Retirement Board,”

“Dow Board,” or the “Board”) and the pension plan it administers

for employees of the Union Carbide Corporation (“UCC”) failed to

provide plan participants adequate notice of substantial plan

amendments pursuant to the requirements of 29 U.S.C. § 1054(h).

Dennis    Brady     sued    the   Board       and    the    amended      plan   under    the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C.     § 1132,         alleging       a        violation        of    those        notice

requirements.           The district court granted summary judgment to

Brady.    We affirm.



                                              I.

               Effective February 6, 2001, UCC became a wholly owned

subsidiary of Dow Chemical Company (“Dow”).                          For the next two

years    the    Dow     Retirement      Board       continued       to   administer      the

traditional defined benefit pension plan that had been available

to UCC employees:          the Retirement Program Plan for Employees of

Union     Carbide       Corporation      and        its    Participating        Subsidiary

Companies      (the     “Prior    UCC   Plan”).           As   of   February      7,   2003,

however, the Board substantially amended the Prior UCC Plan and

renamed    it     the    Union    Carbide          Employees’       Pension     Plan    (the

“UCEPP”).

                                              3
             The    changes      transformed        the   Prior     UCC    Plan    into    a

pension equity plan whereby benefits accrued under a different

formula than under the Prior UCC Plan.                         The UCEPP also uses

different    variables      in       its   formula    than    the    Prior     UCC   Plan.

Benefits     became      available         under    the     new    UCEPP     formula      on

February 7, 2003, but the UCEPP also grandfathered in certain

Prior UCC Plan benefits.              The UCEPP guaranteed plan participants

the benefits that would have been available to them under the

Prior UCC Plan had they retired on February 6, 2003.                           The Board

refers to this as the “frozen February 6, 2003 pension benefit”

or “the February 6, 2003 grandfather benefit.”                         J.A. 118; 195.

The UCEPP also provided that plan participants would continue to

earn benefit accruals under the Prior UCC Plan through December

31, 2005.      The Board refers to this as the “December 31, 2005

grandfather benefit.”           J.A. 196.

             The    Prior      UCC    Plan   provided       both    normal    retirement

benefits     and    early      retirement         benefits.        Normal     retirement

benefits were payable to those age 65 or older with one month of

service, those age 62 or later with 10 years of service, or

those whose age plus years of service totaled 85 (the parties

refer   to   these       participants        as    having     85    “points”).         Plan

participants       not   yet    eligible      for    normal       retirement      benefits

were nevertheless eligible for early retirement benefits in the

form of a percentage of their full retirement benefits.                                This

                                             4
percentage -- or “reduction factor” -- was based on length of

service and age and was slightly more generous for individuals

who were forced to retire early than for individuals who retired

early voluntarily.         The applicable reduction factors appear in

Table    1   and   Table   2   of   the   Prior      UCC    Plan.     Table       1   was

applicable to those individuals who retired early voluntarily,

and Table 2 was applicable to those individuals terminated early

involuntarily.       Table 2 incorporated a benefit that “bridged”

individuals from 83 to 85 points.                   That is, those individuals

whose age plus years of service exceeded 83 were eligible for

full benefits under Table 2.

              Dennis Brady was employed by UCC until July 31, 2004,

at which time he was involuntarily terminated.                      At the time of

his forced retirement, Brady’s age and years of service equaled

83.01:   he    was   fifty-five     years     and    five   months    old    and       had

worked for UCC for twenty-seven years and seven months.                           Brady

sought benefits under the December 31, 2005, grandfather benefit

of $2,642.97 per month.         He argued that he was eligible for full

retirement benefits unreduced by a reduction factor because his

age plus years of service exceeded 83, which meant that he was

bridged from 83 to 85 under Table 2 of the Prior UCC Plan.                             He

based his argument on the materials that Dow had distributed to

plan    participants;      those    materials        indicated      that    the       plan



                                          5
amendments extended benefit accrual under the Prior UCC Plan

through December 31, 2005.

              The    UCEPP      administrators        determined         that    Brady       was

only entitled to $2,361.00 per month.                           The December 31, 2005,

grandfather         benefit     was     applicable         as    an     early    retirement

benefit, but the plan amendment specified that the applicable

reduction     factors      were     those    indicated          under    Table    1    of    the

Prior UCC Plan without regard to whether a participant retired

early   voluntarily        or     involuntarily.            In    short,       Table    2   was

eliminated for purposes of the December 31, 2005, grandfather

benefit.        Pursuant         to     Table     1    the       UCEPP     administrators

determined that a reduction factor of 0.9021 was applicable to

Brady’s benefits.          Brady does not contest whether the UCEPP did

in   fact     eliminate       Table     2   for   purposes         of    calculating         the

December 31, 2005, grandfather benefit.

              Brady’s complaint concerns the adequacy of the notice

that    the    Dow    Retirement        Board     provided         to    prior    UCC       Plan

participants        when     they     converted       to    the       UCEPP.      The       plan

amendments     triggered        a     statutory   notice         requirement      known      as

“204(h) Notice.”           See ERISA, Pub. L. No. 93-405, § 204(h), 88

Stat. 829 (codified as amended at 29 U.S.C. § 1054(h) (2000)).

The Board did provide Prior UCC Plan participants a document

that it identified as a 204(h) Notice.                           But Brady argues that

the 204(h) Notice was deficient because it failed to adequately

                                             6
inform plan participants about the elimination of Table 2 from

those benefits grandfathered into the UCEPP through December 31,

2005.        Further,      Brady    argues        that       this   deficiency    is   an

“egregious         failure”    to     satisfy          § 204(h).        Section 204(h)

requires notice for certain plan amendments, but it only affords

a   remedy    to    plan   participants          for    an    “egregious   failure”    to

comply with those requirements.                  29 U.S.C. § 1054(h)(6).          In the

event of such a failure, plan participants are entitled to the

greater of those benefits available prior to the plan amendment

and those benefits currently available under the amended plan.

Id. § 1054(h)(6).          Brady thus argues that he is entitled to the

greater benefits he would have received under Table 2 of the

Prior UCC Plan.

              Brady filed his complaint in U.S. District Court under

ERISA.       See 29 U.S.C. §§          1132, 1054.            The parties stipulated

that the UCEPP is an “employee pension benefit plan” within the

meaning of 29 U.S.C. § 1002(2) and may be sued in its own name

under 29 U.S.C. § 1132(d)(1).                    Brady’s complaint alleges that

the   Dow    Retirement       Board    failed          to    provide   adequate   204(h)

Notice   under       ERISA    (Count    I)       and    that    UCEPP   administrators

improperly calculated his benefits under a qualified domestic

relations order (Count II).             The parties filed cross-motions for

summary judgment.            The district court granted summary judgment

to Brady on Count I, but granted summary judgment to the Dow

                                             7
Board on Count II.           The Board appeals the grant of summary

judgment to Brady as to Count I.                      Brady does not appeal the

summary judgment against him as to Count II.



                                          II.

            The Dow Retirement Board argues that the notice it

issued   met     the   requirements            of    ERISA    § 204(h).        In    the

alternative, it argues that it made a reasonable, good faith

effort to comply with the statutory requirements sufficient to

satisfy transitional rules applicable at the time the Prior UCC

Plan was amended.         Finally, the Board argues that in no event

did   any   deficiencies          in     its        notice   constitute      egregious

violations of § 204(h).

            We   review     de    novo    a     district     court’s      ruling    on   a

motion for summary judgment.              Eckelberry v. Reliastar Life Ins.

Co., 469 F.3d 340, 343 (4th Cir. 2006).                        Summary judgment is

only appropriate when the moving party demonstrates that “no

genuine issue of material fact exists and that the moving party

is entitled to judgment as a matter of law.”                        Kimmell v. Seven

Up Bottling Co., 993 F.2d 410, 412 (4th Cir. 1993).



                                         III.

            We first consider whether the 204(h) Notice issued by

the   Dow      Retirement        Board    in        this     case   was     deficient.

                                           8
Specifically, Brady alleges that the Dow Board failed to provide

adequate notice with respect to the elimination of Table 2 for

purposes of the December 31, 2005, grandfather benefit.                                   Section

204(h) requires notice of “a significant reduction in the rate

of future benefit accrual.”                     29 U.S.C. § 1054(h).                 A separate

ERISA     provision         makes    clear       that          “a    plan     amendment      which

eliminates       or     reduces           any    early           retirement         benefit     or

retirement-type         subsidy       (within             the       meaning    of    subsection

(g)(2)(A)) shall be treated as having the effect of reducing the

rate of future benefit accrual.”                          Id. § 1054(h)(9).           The Board

does not dispute that the reduction in Brady’s benefits that

resulted from the elimination of Table 2 constituted a reduction

in early retirement benefits or retirement-type subsidies.                                     See

also    S.     Rep.    No.    98-585,       at       30       (1984),   reprinted       in     1984

U.S.C.C.A.N. 2457, 2576 (noting that “a subsidy that continues

after    retirement”         is     considered            a    “retirement-type         subsidy”

under     29     U.S.C.       § 1054(g)(2)(A)                 and    contrasting        it     with

disability          benefits,         death           benefits,             social      security

supplements, or medical benefits).

               In determining whether the reduction in benefits in

Brady’s      case     was    significant,            we    compare      the    amount     of    the

benefit under the plan as amended with the amount of the benefit

under    the     plan       prior    to    the       amendment.             See     Treas.     Reg.

§ 1.411(d)-6, Q&A(7)              (2003) (valid through April 9, 2003) (see

                                                 9
68 Fed. Reg. 17,277, 17,278 (Apr. 9, 2003)); see also Davidson

v. Canteen Corp., 957 F.2d 1404, 1407 (7th Cir. 1992).                                 The

parties’ stipulate that Brady would have been entitled to an

additional $281.97 per month under Table 2 of the Prior UCC

Plan.    Thus, the applicable plan amendments resulted in a 10.7

percent reduction in benefits for Brady.                          We conclude that a

reduction of this magnitude is significant.                        See Davidson, 957

F.2d at 1407 (finding reductions in annual pensions of $17,000

and $13,000 significant); Koenig v. Intercont’l Life Corp., 880

F.   Supp.    372,     375    (E.D.     Pa.        1995)    (finding     reductions     in

pensions between 22 percent and 32 percent significant).                                We

also    conclude     that     the     Board    could        anticipate    decreases     in

benefits     of    this      magnitude    at        the    time   the    amendment     was

adopted.     See Treas. Reg. § 1.411(d)-6, at Q&A(7) (noting that

whether an amendment provides for a significant reduction in

benefits is determined “based on reasonable expectations taking

into account the relevant facts and circumstances at the time

the amendment is adopted”).

             Because      the        elimination           of   Table     2   caused     a

significant       reduction     in    retirement          benefits,     adequate   notice

was required under ERISA § 204(h).                   This notice must be “written

in a manner calculated to be understood by the average plan

participant and [must] provide sufficient information . . . to

allow applicable individuals to understand the effect of the

                                              10
plan amendment.”          29 U.S.C. § 1054(h)(2).              The Board’s 204(h)

Notice issued to Brady and other plan participants failed in one

respect:    it     did    not    provide      adequate      information    about    the

elimination of Table 2 for purposes of the December 31, 2005,

grandfather benefit.

            The 204(h) Notice included the following information

under the heading, “Grandfathered Provisions”:

       It is important to note that when you retire on or
       after February 7, 2003, you will continue to have the
       right to elect to receive the monthly pension benefit,
       and associated eligibility dates and payment options
       you earned under the [Prior UCC Plan] through February
       6, 2003.    You will not receive a monthly pension
       benefit less than what you had earned before February
       7, 2003.

       In addition, to further ease the transition to UCEPP,
       you will continue to earn benefit accruals under the
       [Prior UCC Plan] formulas through December 31, 2005.
       [Except for two modifications inapplicable to the
       current dispute that relate to how length of service
       is calculated and which indicia of earnings is used],
       [t]his benefit will serve as a minimum monthly pension
       benefit when you retire.

J.A.   164.        This     provision      affirmatively       suggests     that    the

formulas    used    under       the   Prior    UCC   Plan    will   continue   to    be

available     through       December       31,   2005,       with   two    explicitly

identified modifications but no other exceptions.                         Indeed, the

February      6,    2003,       grandfather      benefit      retained     Table     2,

furthering an understanding that Table 2 is part and parcel of

the Prior UCC Plan formulas a plan participant would expect to

be used in a grandfathered benefit.

                                           11
              The    Dow     Retirement      Board    argues       that    the       language

makes clear that only “benefit accruals -- not early retirement

subsidies” -- continue through December 31, 2005.                         Appellant Br.

at 17.      We disagree that the Board’s use of the term “benefit

accruals” meant that “early retirement subsidies” were excluded.

The statutory scheme treats benefit accruals as a term of art

that includes retirement subsidies.                  See Economic Growth and Tax

Relief Reconciliation Act of 2001 (“EGTRRA”), Pub. L. 107-16

§ 659(b),      115     Stat.      38   (codified      as     amended      at    29    U.S.C.

§ 1054(h)(9))         (making     clear      that    early    retirement         subsidies

should   be    treated       as   benefit     accruals       for   purposes      of    ERISA

§ 204(h)).      When Dow used the term “benefits accruals,” it was

incorporating the statutory definition.                       We therefore conclude

that   average        plan    participants        would    understand          the    204(h)

Notice language quoted above to grandfather into the December

31, 2005, grandfather benefit the formulas used under the Prior

UCC Plan, which incorporate Table 2’s reduction factors.

              Other    provisions       of    the    204(h)    Notice      further       this

understanding.        The “Questions and Answers” section says,

       Q3. What will happen to the pension benefit I earned
       under the current Union Carbide Retirement Program?

       A3. You will not lose the benefit you have already
       earned under the Union Carbide Retirement Program. In
       addition,   Dow   has   put  transition   credits  and
       grandfathered   provisions  in   place  to   help  you
       transition to UCEPP.


                                             12
J.A.   165.         The   import   of   this     provision      is   to   assure   plan

participants that the benefits available under the Prior UCC

Plan, which included Table 2, would remain available under the

UCEPP during the transition.               Certainly, nothing in the 204(h)

Notice flags the elimination of Table 2 in the December 1, 2005,

grandfather provision.             Insofar as the language of the 204(h)

Notice is misleading about whether Table 2 is retained, it is

inadequate under 29 U.S.C. § 1054(h)(2).                        See Amara v. Cigna

Corp., 534 F. Supp. 2d 288, 339 (D. Conn. 2008) (finding that

204(h) Notice containing affirmatively misleading statements was

not “written in a manner calculated to be understood by the

average      plan    participant”).        At    the     very    least,   the   204(h)

Notice fails to provide sufficient information from which an

average plan participant could understand that Table 2 would not

be available under the December 31, 2005, grandfather benefit.

We therefore agree with the district court’s conclusion that the

204(h) Notice issued in this case was deficient in that respect.



                                          IV.

              The deficient notice raises the question of whether

the    Dow    Retirement     Board      should    nevertheless       be   treated   as

having complied with the requirements of § 204(h) by virtue of

triggering a transitional good faith safe harbor that Congress

created      in     its    2001    amendments       to    ERISA.          See   EGTRRA

                                           13
§ 659(c)(2).       Before   it   reached     that   question,   the   district

court analyzed whether the Board committed an egregious failure

to meet the requirements of § 204(h).               We proceed in the same

order of analysis for clarity of explanation.

          Section 204(h) provides a remedy to plan participants

in the event of an egregious failure to meet its requirements.

29 U.S.C. § 1054(6)(A).       The statute provides that

     there is an egregious failure to meet the requirements
     of [§ 204(h)] if such failure is within the control of
     the plan sponsor and is

     (i) an intentional failure (including any failure to
     promptly provide the required notice or information
     after    the   plan    administrator   discovers    an
     unintentional failure to meet the requirements of this
     subsection),

     (ii) a failure to provide most of the individuals with
     most of the information they are entitled to receive
     under this subsection, or

     (iii) a failure which is determined to be egregious
     under regulations prescribed by the Secretary of the
     Treasury.

29 U.S.C. § 1054(h)(6)(B).         The district court determined that

both subparagraphs (i) and (ii) were implicated in the present

case,   although     it     declined    to    conclude    “that   Defendants

intentionally failed to mention the elimination of Table 2 in

the first instance.”         J.A. 316.       The court instead concluded

that subparagraph (i) was only implicated to the extent that the

Board failed to provide required notice after becoming aware of

an unintentional failure to meet the § 204(h) requirements.


                                       14
               We first consider whether the district court properly

determined that the Dow Board failed “to provide most of the

individuals with most of the information they [were] entitled to

receive       under    this      subsection         [§ 204(h)].”       29      U.S.C.

§ 1054(h)(6)(B)(ii).          We conclude that the evidence proffered by

Brady in support of that determination was not sufficient.                           It

is not enough that a “discernable subclass of employees” was not

provided “adequate information.”                Brady v. Dow Chem. Co. Ret.

Bd.,    No.    2:06-cv-00025      (S.D.   W.    Va.    Sept.   13,   2007).         The

statute requires a court to find that “most of the individuals”

did not receive “most of the information they [were] entitled to

receive.”       29 U.S.C. § 1054(h)(6)(B)(ii).            Used as an adjective,

“most” means “the greatest number of,” “the majority of,“ or

“greatest in quantity, extent, or degree.”                  Webster’s Third New

International Dictionary 1474 (2002).                 Thus, § 1054(h)(6)(b)(ii)

requires a determination that at least a majority of “applicable

individuals,” as that term is defined in                   § 1054(h)(8)(A), did

not receive a large degree of information they were entitled to

receive.

               The correct denominator for concluding whether “most

of     the    individuals”    received      sufficient      information       is    the

number of “applicable individuals” -- or those individuals whose

rate    of    future   benefit    accrual      is    reasonably    expected    to    be

significantly reduced.           29 U.S.C. § 1054(h)(1)(requiring notice

                                          15
to   “each   applicable     individual”);       id.      § 1054(h)(8)    (defining

“applicable    individuals”     to    include       “each   participant    in   the

plan”); Treas. Reg. § 1.411(d)-6, at Q&A(9) (requiring notice

only to those individuals whose benefits are reasonably expected

to   be    significantly     reduced).         In     the   present     case,   the

amendments converting the Prior UCC Plan to the UCEPP affected

every plan participant.         The record indicates that 100 percent

failed to receive notice of the elimination of Table 2 in the

December 31, 2005, grandfather benefit.

             But the district court did not determine whether plan

participants and other applicable individuals failed to receive

a large degree of information that they were entitled to receive

under § 204(h).        A district court must in some way compare the

magnitude of the deficiency in information to the magnitude of

the information required under § 204(h) to find that “most of

the individuals” did not receive “most of the information they

[were] entitled to receive.”           See 29 U.S.C. § 1054(h)(6)(B)(ii).

Because the district court failed to make such a comparison, it

could not conclude that there was an egregious violation under

§ 1054(h)(6)(B)(ii).

             We next examine whether the district court properly

concluded     that    the   Board    “fail[ed]      to    promptly    provide   the

required     notice   or    information      after    the   plan     administrator

discover[ed] an unintentional failure to meet the requirements

                                        16
of this subsection [§ 204(h)].”                  29 U.S.C. § 1054(h)(6)(B)(i).

The   court     determined          that    “Defendants         clearly        knew       that

employees were questioning the elimination of Table 2 prior to

Plaintiff’s     involuntary         separation.”          J.A.    316.         Undisputed

evidence in the record makes clear that UCEPP administrators

knew that multiple plan participants were confused about the

status    of   Table      2.    Dow’s      pension      plan    leader       emailed      plan

personnel to inform them that there had been “several inquiries

by UCC employees questioning the elimination of the ‘bridging’

provision      as    it    relates     to    the     grandfathered           UCC     pension

benefit.”       J.A.      24.       Moreover,      as    the    court    noted,        Brady

participated in a lengthy email exchange with Dow’s pension plan

leader    in   which      Brady     described      why    the    204(h)       Notice       was

misleading     with       respect    to     whether      the    December       31,     2005,

grandfather benefit would retain Table 2’s reduction factors.

Brady explained that the relevant language in the 204(h) Notice

affirmatively suggested that the December 31, 2005, grandfather

benefit    would     “contain       both    adjustment     tables       (a    ‘voluntary’

table, and a ‘involuntary’ table).”                      J.A. 25.        Based on this

information,        the   district      court    properly       concluded          that    the

Board discovered its failure to provide sufficient information

to allow average plan participants to understand that the plan

amendment would eliminate Table 2 with respect to the December

31, 2005, grandfather benefit.

                                            17
             Moreover, the record reveals that the Dow Board failed

to    promptly    rectify    its   deficient       notice     after   being       put   on

notice of it.        The Board argues that it notified Brady “on at

least four separate occasions that he would not receive an early

retirement       subsidy.”     Appellant       Br.      at   22.    The    first    such

occasion     occurred    by    email   in      October        2003.        That    email

described how to calculate Brady’s February 6, 2003, benefit,

for which Table 2 was retained.               It did not explain that Table 2

was    eliminated      for    purposes        of     the     December      31,     2005,

grandfather benefit, and it was not adequate under 29 U.S.C.

§ 1054(h)(6)(B)(i).          The remaining three occasions cited by the

Board also did not rectify the deficient notice.                      They occurred

immediately prior to or after Brady retired and were a part of

its communications denying him full retirement benefits under

the bridging benefit of Table 2.               We need not reach the question

of what “notice or information” is minimally required under the

statute.     It is enough to conclude that the information that the

Board relayed to Brady while denying him retirement benefits was

not sufficient.       Congress did not intend for pension plans to be

able    to   satisfy    the     strictures         of    § 204(h)     --    a     notice

requirement -- by communicating benefits reductions individually

to plan participants at the time they seek and are denied ceased

benefits.        We thus agree with the district court that the Dow



                                         18
Board    committed      an   egregious        violation        of   the   204(h)    notice

requirements under § 1054(h)(6)(B)(i).



                                              V.

            We turn finally to whether the good faith safe harbor

provision    requires        us   to    treat      the   Dow    Retirement    Board       as

meeting     the    requirements          of     § 204(h)       irrespective        of    our

conclusions       in    parts     III    and       IV,   above.       Congress’s        2001

amendments to ERISA, which made clear that 204(h) Notice was

required     for       reductions       in     early     retirement       benefits       and

retirement-type subsidies (in addition to benefit accruals for

normal retirement benefits), provided for a transitional good

faith safe harbor.

     Until such time as the Secretary of the Treasury
     issues regulations under sections 4980F(e)(2) and (3)
     of the Internal Revenue Code of 1986, and section
     204(h) of the Employee Retirement Income Security Act
     of 1974, as added by the amendments made by this
     section, a plan shall be treated as meeting the
     requirements of such sections if it makes a good faith
     effort to comply with such requirements.

EGTRRA      § 659(c)(2).                In     the       regulations       subsequently

promulgated, the Secretary of the Treasury similarly provided

that for plan amendments taking effect before the September 2,

2003, effective date of the regulations, the requirements of

“section 204(h), as amended by EGTRRA, are treated as satisfied

if the plan administrator makes a reasonable, good faith effort


                                              19
to   comply      with    those      requirements.”              68    Fed.    Reg.       17,277,

Q&A(18) (Apr. 9, 2003)(to be codified at 26 C.F.R. pts 1, 54,

and 602). 1          The Dow Board argues that its efforts to satisfy

§ 204(h), even if technically deficient, were reasonable, made

in     good     faith,       and    are        thus    insulated        under      the     above

transitional safe harbor.

                The district court concluded that except for the two

respects        in   which    it    determined         that     the   Board       egregiously

violated § 204(h), “it cannot be said that Defendants failed to

make       a   ‘reasonable,        good    faith       effort    to    comply’       with    the

statutory requirements.”                  J.A. 318.        Our review is therefore

limited to whether there was an unreasonable or bad faith effort

to   comply       with   § 204(h)         as    a     result    of    the    two     egregious

violations       identified        by     the   district       court.        It    is    further

limited by our conclusion above that there was not sufficient

evidence in the record to allow a determination that the Dow

Board failed to provide “most of the individuals with most of

the information they are entitled to receive.”                               See 29 U.S.C.

§ 1054(h)(6)(B)(ii).                    Summary         judgment        is        nevertheless

appropriate if the Dow Board’s failure to promptly rectify its

       1
       Because we conclude that Dow did not make a good faith
effort to comply with the requirements of § 204(h), we need not
decide whether the “reasonable, good faith effort” contemplated
in the Treasury regulations is the same as a “good faith effort”
under EGTRRA § 659(c)(2).



                                                20
deficient 204(h) Notice was tantamount to an unreasonable or bad

faith effort to comply with § 204(h)’s requirements.

            The district court concluded that there was a failure

to provide notice after the plan administrator discovered an

inadvertent       deficiency      in       the    plan’s    204(h)      Notice.       The

district court expressly declined to conclude that there was an

intentional failure “in the first instance.”                      J.A. 316.       We must

thus determine whether the failure that did occur is sufficient

to establish that the plan failed to “make[] a reasonable, good

faith    effort    to    comply       with    [the]     requirements      [of     section

204(h)].”     68 Fed. Reg. 17,277 Q & A(18).                    We conclude that it

does.

            The Board is not protected under the good faith safe

harbor unless it acted in good faith in its efforts to comply

with all of § 204(h)’s requirements.                    Those requirements include

a   continuing     obligation         to     supplement     a   deficient       § 204(h)

notice.     The statutory safe harbor provides that “Until such

time [as regulations are issued interpreting IRC § 4980F and

ERISA     § 204(h)]      a     plan    shall      be    treated    as     meeting     the

requirements of such sections if it makes a good faith effort to

comply    with    such       requirements.”            EGTRRA   § 659(c)(2).         This

language indicates that the good faith effort contemplated by

Congress was an ongoing obligation.                     It is not enough to have



                                             21
made a good faith effort at the outset of a plan amendment.                         The

text of § 204(h) further supports this understanding:

      [T]here   is  an   egregious  failure  to   meet  the
      requirements of this subsection [§ 204(h)] if [there
      is a] failure to promptly provide the required notice
      or information after the plan administrator discovers
      an unintentional failure to meet the requirements of
      this subsection [§ 204(h)].

29   U.S.C.      § 1054(h)(6)(B)       (emphasis     added).        This   provision

affirms   that     there      is   a   continuing    obligation      to    correct    a

deficient § 204(h) notice.               An act constituting an egregious

failure     to     meet    the     requirements      of    § 204(h)       necessarily

constitutes a violation of § 204(h). 2                    Congress may have been

concerned     about     the   ability    of    pension     plans    to   satisfy   the

requirements       of     § 204(h)      before      Treasury       clarified    those

requirements, but it apparently concluded that it was affording

pension plans sufficient protection by placing any pension plan

acting in good faith into its safe harbor.

              We   affirm        the   district      court’s       conclusion      that

irrespective of whether the Board acted in good faith when it



      2
       We do not reach any conclusions about the applicability of
Internal Revenue Code (IRC), 26 U.S.C. § 4980F, which imposes a
tax on pension plans that fail to exercise reasonable diligence
in complying with notice requirements or fail to correct
inadequate notice within thirty days “beginning on the first
date such person knew, or exercising reasonable diligence would
have known, that such failure [to provide adequate notice]
existed.”   26 U.S.C. § 4980F(c)(2).    In particular, we do not
offer an opinion on what reasonable diligence entails.



                                          22
originally published its 204(h) Notice, it was no longer acting

in good faith when it failed to promptly supplement its 204(h)

Notice upon discovering a deficiency.                        The plan administrator

received a coherent and compelling explanation that the 204(h)

Notice was misleading with respect to whether the December 31,

2005,   grandfather        benefit       retained   Table      2’s    benefits.        The

language     of    the     204(h)     Notice     patently          failed    to    provide

sufficient information for an average plan participant to glean

that Table 2’s benefits would be eliminated with respect to the

December     31,    2005,        grandfather     benefit.            The    record     also

contains undisputed evidence that the Board knew that multiple

employees were in fact confused about this aspect of the plan

amendment.          This     evidence       supports         the    district      court’s

determination that the Board failed to act in good faith when it

declined to clarify its misleading (and thus deficient) 204(h)

Notice.



                                           VI.

            In     sum,     we    hold    that   the    district       court      properly

concluded    that     the    § 204(h)      Notice      the    Dow    Retirement      Board

provided    to     plan    participants      was    deficient.             Moreover,   the

deficiency amounted to an egregious failure to provide adequate

§ 204(h) notice because the Board failed to promptly provide

additional        notice         or   information        upon        discovering       the

                                            23
deficiency.       We    also     conclude    that     summary        judgment     was

appropriate    notwithstanding      the    transitional       safe    harbor     that

insulates   reasonable     and    good    faith     efforts    to     comply     with

amended § 204(h).       The Board did not act reasonably and in good

faith to satisfy its continuing obligation to supplement its

deficient     notice.     Accordingly,       the    district     court’s        order

granting summary judgment to Dennis Brady is

                                                                        AFFIRMED.




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