Anderson v. Intel – U.S. Supreme Court Grants Certiorari: Implications for ERISA “Excessive Fee” Litigation

The U.S. Supreme Court recently granted certiorari in Anderson v. Intel Corp., a closely watched Employee Retirement Income Security Act (ERISA) case that presents the question of whether ERISA plaintiffs alleging imprudent investment decisions based on fund underperformance must plead a “meaningful benchmark” at the motion-to-dismiss stage. The Ninth Circuit held that such a benchmark is required and affirmed dismissal of the complaint for failure to identify an appropriate comparator. Plaintiffs argue that this categorical pleading rule conflicts with ERISA’s context-specific prudence standard and with the Supreme Court’s recent ERISA cases.

The Court’s most recent pleading-stage ERISA cases (Hughes v. Northwestern University and Cunningham v. Cornell) left unresolved questions about the appropriate limits on ERISA claims at the outset of litigation. In addition, there is a circuit court split as to whether a “meaningful benchmark” is required for an ERISA breach of fiduciary duty claim. Given that backdrop, alongside the significant volume of litigation in this area, practitioners are watching Anderson closely to see whether the Supreme Court provides further guidance on when dismissal is appropriate, including by clarifying whether claims challenging investment decisions must allege a meaningful benchmark.

Background and Question Presented

Participants in Intel’s defined contributions plans sued the plans’ fiduciaries, claiming that they breached their fiduciary duties under ERISA with respect to the management of customized target date funds and a customized global diversified fund. In particular, the plaintiffs claimed that the plans’ fiduciaries acted imprudently by allocating significant portions of the assets of those funds to hedge funds, private equity, and other alternative investments. The plaintiffs alleged that these allocations led to higher fees and underperformance relative to more traditional plan investments.

The district court dismissed the plaintiffs’ claims, and the Ninth Circuit affirmed. It held that when a plaintiff relies on underperformance or excessive fees to infer imprudence, the complaint must identify a “meaningful benchmark” — that is, a comparator fund with sufficiently similar aims, risks, and objectives. The court concluded that plaintiffs failed to state a claim because their proposed comparators — including indices, Morningstar peer groups, and other target date funds — were not meaningfully similar to the challenged investment options, including because the purported comparators pursued different investment strategies than the challenged investment options. In concurrence, Judge Marsha Lee Berzon emphasized that imprudence may be plausibly alleged not just with facts about meaningful benchmarks but through other circumstantial facts showing a flawed fiduciary process.

The Supreme Court granted certiorari to consider whether allegations of fund underperformance, without a meaningful benchmark, are sufficient to state a claim that an ERISA fiduciary breached the duty of prudence.

Key Issues to Watch for ERISA Practitioners

The Court’s decision in Anderson v. Intel is likely to have consequences beyond the specific investment strategy at issue in the case. Depending on how the Court resolves the question presented, the case could significantly affect how lower courts evaluate ERISA imprudence claims at the pleading stage, particularly those based on allegations of excessive fees or underperformance. The following lists several issues practitioners will watch closely as the case moves forward.

1. “Categorical” Pleading Rules. The Court will consider whether the Ninth Circuit’s benchmark requirement amounts to a categorical rule in tension with the “context-specific inquiry” standard articulated in Hughes v. Northwestern University, or instead reflects a straightforward application of ordinary plausibility principles to claims about investment underperformance. How the Court resolves that question may affect whether and how the Court uses Anderson to expand or constrain pleading-stage dismissals in this area.
2. Clarification (or Redefinition) of “Meaningful Benchmark.” Anderson also may clarify what suffices as a benchmark. The Ninth Circuit demanded close alignment of objectives and risk profiles, rejecting the plaintiffs’ peer-group and index comparisons. The plaintiffs argue that this standard is so exacting that it effectively insulates outlier investment strategies from judicial review. A ruling that relaxes the benchmark standard could lower the pleading hurdle for excessive-fee and underperformance claims and potentially other types of prudence claims in other contexts.
3. Treatment of Allegedly “Unusual” or “Outlier” Investment Strategies. A recurring theme in the plaintiffs’ briefing is that Intel’s investment strategy was so atypical that no meaningful comparators exist. The Ninth Circuit held that the absence of a comparator defeated the claim, while plaintiffs contend that this result shields even the most extreme fiduciary decisions from scrutiny. The Court’s resolution of this issue could have significant consequences for challenges to alternative investments and customized plan investment strategies. This issue is particularly interesting when considered alongside an August 7, 2025, presidential executive order that declared a policy that “every American preparing for retirement should have access to funds that include investments in alternative assets” and called on the Department of Labor to “clarify [its] position on alternative assets.” The Department of Labor submitted proposed rules relating to the inclusion of alternative assets in defined contribution plans to the White House Office of Management and Budget on January 13, 2026. The proposed rules are not yet available for public comment.
4. Trajectory After Hughes and Cunningham. The Court’s recent ERISA pleading-stage decisions have left open key questions about the role of comparative allegations at the motion-to-dismiss stage. Anderson presents an opportunity for the Court to clarify whether and when early dismissal is warranted where plaintiffs rely heavily on comparative allegations.
5. Practical Impact on Motion-to-Dismiss Strategy. An affirmance would reinforce close judicial scrutiny of plaintiffs’ allegations about comparator funds at the pleading stage, while a reversal could prompt courts to reassess how such allegations factor into the plausibility analysis. Either outcome will shape the future application of ERISA pleading standards. In the interim, some lower courts with pending motions to dismiss in ERISA fiduciary cases may keep rulings on those motions under advisement while they await further guidance from the Supreme Court.

Ultimately, Anderson gives the Court an opportunity to put meaningful limits on ERISA fiduciary litigation at the pleading stage. If the Court affirms the Ninth Circuit or articulates a uniform standard for comparator-based challenges to investment options, plan fiduciaries nationwide will have a key tool for early dismissal of ERISA excessive-fee cases that rely on allegations about inapposite benchmarks and hindsight-driven comparisons.