On October 6, 2026, the Supreme Court heard argument in Anderson v. Intel Corporation Investment Policy Committee (No. 25-498), the first case in which the Court has taken up the pleading standard for an ERISA imprudence claim premised on investment underperformance. The question presented is whether, under the ERISA meaningful benchmark rule as the circuits have developed it, a participant who alleges that a plan’s investments underperformed must identify an ERISA meaningful benchmark, a comparator with materially similar objectives, strategies, and risk, in order to survive a motion to dismiss. The answer will govern the largest category of fiduciary litigation in the country, and it will do more to set the price and availability of fiduciary liability insurance for defined contribution plan sponsors than any regulatory development of the past decade.
How the case got here
The Intel 401(k) Savings Plan and its retirement contribution plan offered custom target date funds and a Global Diversified Fund that, after the 2008 financial crisis, were allocated heavily to hedge funds, private equity, and commodities. By the end of 2013, the Global Diversified Fund held up to 36.71 percent of its assets in those categories (PLANSPONSOR, 2026). The allocation was designed to reduce volatility and protect against drawdowns, and it did: the funds outperformed equity-heavy peers in down years and lagged them through the long bull market that followed. Participants first sued in 2015, in a case that reached the Supreme Court once already on a limitations question (Intel Corp. Investment Policy Committee v. Sulyma, 2020), and again in 2019 in the action now before the Court.
The district court dismissed the operative complaint because the plaintiffs had not identified an ERISA meaningful benchmark against which the Intel funds’ performance could be assessed; the comparators they offered were equity-heavy retail target date funds with different objectives and risk profiles, while Intel had constructed its own custom benchmarks reflecting the funds’ actual allocations. The Ninth Circuit affirmed in May 2025, holding that ERISA’s duty of prudence is a duty of process, that allegations of lower returns than funds pursuing different strategies do not support a plausible inference of a flawed process, and that a plaintiff relying on underperformance must compare the challenged investment to something meaningfully similar (Anderson v. Intel Corp. Investment Policy Committee, 2025). The Supreme Court granted certiorari on January 16, 2026.
The doctrinal landscape
The Court has addressed ERISA pleading before, but never this question directly. Fifth Third Bancorp v. Dudenhoeffer (2014) instructed lower courts to apply careful, context-sensitive scrutiny to imprudence claims at the pleading stage because of the risk that meritless suits will be settled for their nuisance value. Hughes v. Northwestern University (2022) reaffirmed that instruction while reversing a Seventh Circuit decision that had treated the availability of low-cost options on a menu as a complete answer to a claim that the menu also contained imprudent ones. Neither opinion said what a plaintiff must plead when the theory is that an investment did badly.
The circuits filled the gap with a requirement that has become the organizing principle of defined contribution litigation. The Eighth Circuit required an ERISA meaningful benchmark in Meiners v. Wells Fargo & Co. (2018) and tightened it in Matousek v. MidAmerican Energy Co. (2022). The Sixth Circuit followed in Smith v. CommonSpirit Health (2022), the Seventh in Albert v. Oshkosh Corp. (2022), and the Tenth in Matney v. Barrick Gold of North America, Inc. (2023). The Third Circuit has taken a more holistic view, treating comparisons as one input among several (Sweda v. University of Pennsylvania, 2019). The petition in Anderson framed the Ninth Circuit’s version as a categorical rule that forecloses holistic analysis; Intel, supported by the Solicitor General, framed it as nothing more than Twombly and Iqbal applied to a claim whose only factual predicate is a performance number that means nothing without a comparator (Brief for the United States as Amicus Curiae, 2026).
What happened at argument
By the accounts of those in the courtroom, the argument narrowed quickly. Matthew Wessler, for the petitioners, conceded that a plaintiff relying on underperformance must offer some comparison, and argued instead that the Ninth Circuit had erred by requiring a materially indistinguishable fund that differed only in results, rather than allowing performance allegations to be weighed together with allegations about the allocation itself, which he characterized as unprecedented in its concentration in alternatives for a plan of Intel’s size. Justice Barrett observed that he appeared to accept an ERISA meaningful benchmark requirement and to be contesting only what counts as meaningful. Justice Gorsuch and Justice Kavanaugh each suggested that the argument had shifted ground from the question presented toward a challenge to the investment strategy itself. Justice Thomas put the Ninth Circuit’s logic plainly: an equity fund built for high returns cannot be compared to a fund built to protect against losses. Justice Sotomayor asked counsel to define “meaningful,” and received the answer that the inquiry is entirely context-dependent (PLANSPONSOR, 2026).
Charles McCloud, for Intel, was pressed from the other direction. Justice Barrett asked whether the Court should simply answer “yes” to the question presented or whether it needed to write a rule statement explaining what a meaningful benchmark is; he responded that lower courts have not struggled with the concept and that this case did not require the Court to define it. Several justices appeared unpersuaded that they could decide the case without saying more. Justice Jackson asked petitioners’ counsel what the complaint rested on if not performance allegations, a question that goes to whether the nonperformance allegations about the allocation could carry the claim on their own (PLANSPONSOR, 2026).
The most probable outcome, on this record, is a holding that a plaintiff who pleads underperformance must plead an ERISA meaningful benchmark, accompanied by some guidance on what makes a comparator meaningful, and a remand for the Ninth Circuit to apply that guidance to the comparators the plaintiffs actually offered. A decision is expected by the end of June 2027.
The regulatory backdrop
The argument took place against two developments the Court did not discuss but every fiduciary should. The August 2025 executive order on alternative assets in defined contribution plans directed the Department of Labor to reexamine its guidance on private equity, private credit, real estate, and digital assets in 401(k) menus, and the Department’s March 2026 proposed rule on fiduciary duties in selecting designated investment alternatives would create a prudence safe harbor for fiduciaries who follow a documented process that includes, among other things, identifying an appropriate benchmark for each investment option and reviewing performance against it (U.S. Department of Labor, 2026). The Intel allocation that produced this litigation is, in other words, the allocation the current administration wants more plans to adopt, and the benchmark discipline the Court is being asked to require of plaintiffs is the same discipline the Department proposes to require of fiduciaries. A sponsor that adopts alternatives without a written benchmark for each fund will have neither the safe harbor nor a ready answer when a plaintiff proposes a comparator of its own choosing.
Why the ERISA meaningful benchmark standard sets the price of fiduciary coverage
Fiduciary liability underwriters price defined contribution risk on claim frequency and defense cost, and both are functions of the pleading standard. An underperformance claim that survives a motion to dismiss proceeds to discovery that routinely costs seven figures and settles, in the mid-market, for low eight. An underperformance claim that is dismissed costs a fraction of that and generates no settlement pressure. The spread between those outcomes is what retentions, limits, and premium reflect, and the mass or class action retention that most carriers now impose on larger plans exists precisely because the plaintiffs’ bar has learned that a complaint reciting a fund’s returns next to a Vanguard index fund’s returns will, in some circuits, buy a seat at the settlement table.
If the Court adopts the ERISA meaningful benchmark requirement with workable guidance, the practical effect is to make the Eighth, Sixth, Seventh, and Tenth Circuit standard national. Sponsors in the Third Circuit and in district courts that have followed the holistic approach will gain a dismissal argument they do not currently have, and underwriters will have grounds to moderate class action retentions for well-documented plans. If the Court instead holds that performance allegations need only contribute to a plausible overall picture, the Third Circuit approach becomes national, and the forfeiture, excessive fee, and underperformance dockets that have already produced dozens of eight-figure settlements will expand. In either case, the underwriting questions will change. Carriers will ask whether the committee has designated a benchmark for every fund on the menu, whether the investment policy statement explains why that benchmark was chosen, whether performance is reviewed against it at each meeting, and whether the minutes show that review. A sponsor that can answer yes to all four is a materially better risk the day the opinion issues than one that cannot. Our underwriters at FiduciaryLiabilityCoverage.com are already building those questions into placement for the 2027 renewal cycle.
What the ERISA bond does not do
It is worth saying clearly, because sponsors confuse the two instruments with regularity, that nothing in Anderson implicates the ERISA fidelity bond. The § 412 bond protects the plan against loss caused by fraud or dishonesty of persons who handle plan funds; it responds to theft, not to an investment committee’s judgment about hedge fund allocations. The Intel plaintiffs do not allege that anyone stole anything. They allege that fiduciaries chose badly, and a claim that fiduciaries chose badly is a fiduciary liability claim, full stop. The bond remains mandatory, and its absence or inadequacy is the first thing a Department of Labor investigator looks for on a Form 5500, so sponsors should confirm it through ERISA-Bonds.com as a matter of statutory compliance. But a sponsor that reads about Anderson and checks its bond has checked the wrong document.
Practical steps before the opinion
Designate a benchmark for every designated investment alternative, including custom and white label funds, and record in the investment policy statement why that benchmark reflects the fund’s objective and risk. Where a fund uses alternatives, document the volatility and drawdown rationale at the time of adoption, not after the first down quarter. Review performance against the designated benchmark at every committee meeting and minute the review. Retain the investment consultant’s reports and the committee’s questions about them. Confirm the fiduciary liability policy’s class action retention, defense cost treatment, and definition of insured persons before the 2027 renewal, when the opinion will be in hand and carriers will be repricing. A committee that has done those things will be positioned to win a motion to dismiss under whatever standard the Court writes, and will have given its underwriter every reason to price it accordingly. Keep up with all things “ERISA” on our blog.
~ C. Constantin Poindexter, MA, JD, CPCU, AFSB, ASLI, ARe, AINS, AIS, CPLP
References
- Albert v. Oshkosh Corp., 47 F.4th 570 (7th Cir. 2022).
- Anderson v. Intel Corp. Investment Policy Committee, 137 F.4th 1026 (9th Cir. 2025), cert. granted, No. 25-498 (U.S. Jan. 16, 2026), argued Oct. 6, 2026.
- Ashcroft v. Iqbal, 556 U.S. 662 (2009).
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
- Brief for the United States as Amicus Curiae Supporting Respondents, Anderson v. Intel Corp. Investment Policy Committee, No. 25-498 (U.S. 2026).
- Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1104(a)(1)(B), 1112(a).
- Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014).
- Hughes v. Northwestern University, 595 U.S. 170 (2022).
- Intel Corp. Investment Policy Committee v. Sulyma, 589 U.S. 178 (2020).
- Matney v. Barrick Gold of North America, Inc., 80 F.4th 1136 (10th Cir. 2023).
- Matousek v. MidAmerican Energy Co., 51 F.4th 274 (8th Cir. 2022).
- Meiners v. Wells Fargo & Co., 898 F.3d 820 (8th Cir. 2018).
- PLANSPONSOR. (2026, October 6). Supreme Court probes “meaningful benchmark” definition in Intel oral arguments.
- Smith v. CommonSpirit Health, 37 F.4th 1160 (6th Cir. 2022).
- Sweda v. University of Pennsylvania, 923 F.3d 320 (3d Cir. 2019).
- U.S. Department of Labor, Employee Benefits Security Administration. (2026, March 31). Fiduciary duties in selecting designated investment alternatives (proposed rule), 91 Fed. Reg.
- Democratizing Access to Alternative Assets for 401(k) Investors, Exec. Order No. 14330, 90 Fed. Reg. (Aug. 7, 2025).
