The U.S. Supreme Court heard arguments on October 6, 2026, in Anderson v. Intel, debating whether workers suing over 401(k) underperformance must provide a meaningful benchmark. Justices leaned toward affirming lower court dismissals, raising questions about how plan sponsors utilize alternative assets.
The high court is weighing a dispute over how employees challenge workplace retirement accounts. At issue is whether participants alleging fiduciary imprudence under the Employee Retirement Income Security Act must identify a proper comparator fund to survive early dismissal.
Oral Arguments in Anderson v. Intel
During the October 6, 2026, hearing at the U.S. Supreme Court, the justices focused heavily on the lack of appropriate benchmarks in lawsuits brought by retirement plan participants. While working for Intel Corporation—a prominent Silicon Valley semiconductor manufacturer and technology enterprise—petitioner Winston Anderson took part in two distinct defined contribution plans.
Workers claimed those allocations dragged down returns and increased fees compared to standard equity indexes. In May 2025, the Ninth Circuit Court of Appeals affirmed a district court ruling in favor of Intel, concluding that the plaintiffs had failed to demonstrate that the company made imprudent investment decisions.
Seeking to minimize volatility and mitigate risk during economic downturns, defendant Intel has emphasized that its investment choices for the Intel 401(k) Savings Plans involved placing a portion of assets into private equity and hedge funds. Matthew Wessler, the attorney for the petitioners, argued before the justices that courts must assess all non-conclusory allegations together in determining if a complaint plausibly states a claim. Wessler argued that the meaningful benchmark requirement improperly limits a type of suit that relies on a range of possible comparisons, stating that determining what is relevant—whether asset allocations or risks—is a project doomed to fail if universally defined without reference to individual facts and circumstances.
Justices Debate Benchmark Standards
Throughout the oral arguments, several Supreme Court justices used fruit analogies to illustrate the necessity of comparing similar investment strategies. Justice Clarence Thomas opened the discussion by asking whether an attorney agreed that one cannot compare apples and oranges. Justice Amy Coney Barrett asked whether one has to determine if something comes from a certain kind of tree to decide if an apple is an apple. Justice Elena Kagan called the petitioners’ argument a caricature of the Ninth Circuit’s decision, which she described as pretty reasonable.
Justice Clarence Thomas noted that what the Ninth Circuit is saying is that you cannot compare apples and oranges.
Justice Samuel Alito and Justice Neil Gorsuch also asked if a comparable evaluation criterion was necessary. Justice Gorsuch cautioned his fellow justices against weighing in on whether underperformance is the standard of proof for whether a company acted irresponsibly, noting during the hearing that they should bracket that question. Luke McCloud of Williams & Connolly LLP argued for the Intel committee, while Assistant Solicitor General Amy Brown represented the government in support of the Intel fiduciaries, telling the court that it could outline certain parameters for the concept of a meaningful benchmark.
Agree with the general principle that when we’re limited to underperformance claims … a meaningful benchmark of some kind is required, apples, not oranges.
Justice Neil Gorsuch, via Supreme Court oral arguments reported by CNBC and Newsweek
In an analysis of the case, George Sepsakos pointed out that the Department of Labor filed an amicus brief urging the Supreme Court to uphold the Ninth Circuit’s ruling; the department argued that evaluating underperformance against investments never provided by a plan is insufficient on its own to plausibly infer a flawed process. Dominick Freda, legal director at Better Markets, which filed briefs supporting the plaintiffs, stated that American workers depend on their 401(k)s to retire with dignity and that plan managers in this case gambled with employee savings and refused to change course despite predictable underperformance.
Impact on Plan Sponsors and Alternative Investments
Legal experts and retirement industry analysts closely monitoring the case suggest that a ruling in favor of Intel could reshape litigation risks for employers nationwide. Eugene Scalia, a partner at Gibson Dunn & Crutcher, noted that private funds can be an effective and entirely appropriate component of 401(k) plan investment options.
As they await the Supreme Court’s ruling and final Labor Department regulations regarding alternative assets, numerous plan sponsors remain undecided about updating their 401(k) lineups. Amy Vaillancourt, president of retirement at Voya Financial, noted in an email that interest is coming from employers who want to make those decisions in a way that aligns with their fiduciary obligations, while incorporating alternatives in thoughtful ways. Joshua Lichtenstein, a partner at Ropes & Gray, suggested that a favorable ruling would give greater assurance to employers who have long hesitated to adopt these strategies out of concern for potential lawsuits, helping them feel secure enough to proceed with a reduced risk of litigation. Endeavor Retirement founder Bonnie Treichel suggested that while a precise definition of a valid benchmark would bring clarity, it might also inadvertently supply plaintiffs’ attorneys with a ready-made checklist for drafting future lawsuits.
The Supreme Court is expected to issue its official ruling in Anderson v. Intel before the conclusion of the term by summer 2027.
