WASHINGTON – The ERISA Industry Committee (ERIC) joined six other employer and retirement-industry groups in filing a Supreme Court amicus brief supporting Intel in Anderson v. Intel Corp. Investment Policy Committee. The brief urges the Court to affirm the Ninth Circuit’s ruling that plaintiffs must plead fiduciary breach claims with plausible, apples-to-apples comparisons, not by cherry-picking higher-performing investments after the fact.
The case centers on a simple question: can a lawsuit against a 401(k) plan proceed just because a different investment with a different strategy happened to perform better? Intel’s plan fiduciaries built custom funds after the 2008 financial crisis designed to limit losses in a downturn, even if that meant giving up some gains in a good market. Plaintiffs say those funds were imprudent because other, unrelated funds performed better over a period the plaintiffs selected. The Ninth Circuit disagreed, ruling that this kind of comparison only counts if the funds being compared are similar, known as a “meaningful benchmark.” ERIC’s brief asks the Supreme Court to uphold that ruling.
“You can’t judge how fast a marathon runner is by comparing them to a sprinter,” said Doug Hinson, Executive Director of the ERIC Legal Center. “Retirement plans select investments that have different objectives. For example, some investments are designed to protect against losses, others to maximize growth. If any fiduciary can be sued just because some other fund somewhere did better, every plan in the country becomes a target. This type of litigation ultimately harms workers and retirees in the form of lower matching contributions and fewer choices.”
The brief argues that allowing plaintiffs to plead imprudence through mismatched comparisons, instead of actual allegations about a fiduciary’s investment selection process, would subject plan sponsors to “Monday-morning quarterbacking,” discouraging employers from offering the customized, risk-conscious investment options that many participants want.
Reinforcing ERIC’s Position Before DOL
The brief’s arguments echo ERIC’s position with regulators. In comments filed with the Department of Labor on June 1, 2026, on a related proposed rule, ERIC urged DOL to make clear that fiduciaries should be judged on the process they followed at the time of making decisions, not on results that only look bad in hindsight.
The Anderson v. Intel Corp. Investment Policy Committee brief is available here.