What does it take to sue over a 401(k) fund that lagged? The Intel case at the Supreme Court

On October 6, the Supreme Court heard a case about what employees have to show before a lawsuit over an underperforming plan investment can go forward. Here is what the case is about, and why the work for plan sponsors is the same however it comes out.

On October 6, 2026, the Supreme Court heard argument in Anderson v. Intel Corp. Investment Policy Committee. The case asks a narrow question with broad reach: when employees sue because a 401(k) investment underperformed, what do they have to point to before the lawsuit can go forward?¹

What happened at Intel

After the 2008 financial crisis, Intel added hedge funds and private equity to the custom target-date and diversified funds in its retirement plans. Intel's stated goal was to reduce volatility and limit losses in downturns, and it acknowledged the funds could trail stock-heavy funds in rising markets.¹ A former employee sued, alleging the funds charged higher fees and returned less than mutual fund alternatives.²

The district court dismissed the case, and the Ninth Circuit affirmed in May 2025. The appeals court held that a claim built on underperformance needs a “meaningful benchmark”: a comparable investment that shows what a prudent fiduciary in a similar position would have done.²

The question before the Court

The Court is deciding whether employees must plead a meaningful benchmark when they claim a fiduciary acted imprudently because an investment underperformed.¹ It is not deciding whether Intel's investments were prudent. It is deciding how much a complaint has to show before a case gets past the first motion to dismiss.

At argument, several justices appeared open to requiring some comparator, while asking how to define “meaningful” without requiring an identical fund. The Department of Labor and many retirement industry groups supported Intel; participant advocates supported the employee.¹ A decision is expected before the Court's term ends next summer.

The case builds on Hughes v. Northwestern University, a 2022 decision in which the Court said fiduciary decisions have to be judged in context. Part of what the Court will weigh is whether a benchmark requirement fits with that.²

Why it matters to plan sponsors

If the Court requires a meaningful benchmark, underperformance claims may be harder to bring, especially against investment strategies that differ from common alternatives. If it does not, more of these cases may get past the first stage, which is where defense costs and settlement pressure build.²

Either way, the ruling is about what a lawsuit has to allege. It does not change what ERISA asks of the people who choose and monitor plan investments: a prudent process, followed and written down.

The tradeoff

A strategy built to reduce risk will trail in some markets. That is the design, not a flaw, and it can be a reasonable choice. The tradeoff is that it has to be explained: what the investment is meant to do, what it is expected to cost in strong markets, and how the committee will judge whether it is working.

Questions to ask about your plan

• Does your investment policy statement say what each fund is meant to do, and what it is measured against?
• Are those benchmarks comparable to each fund's actual strategy?
• When a fund trails its benchmark, do your committee minutes record what was discussed and decided?
• Have the plan's fees been compared to similar options recently?
• Could someone outside the committee read your records and follow the reasoning?

None of this depends on how the Court rules.

If you would like a second set of eyes on how your plan's investments are monitored, start a conversation.

¹ Anderson v. Intel Corp. Investment Policy Committee, No. 25-498, U.S. Supreme Court, argued Oct. 6, 2026; NAPA Net, “Justices Probe ‘Meaningful Benchmark’ Standard in Intel Arguments,” Oct. 7, 2026.

² DLA Piper, “Supreme Court to decide ERISA 401(k) pleading standard in Anderson v. Intel Corp.,” Jan. 30, 2026.