On Tuesday, October 6, 2026, the Supreme Court hears argument in Anderson v. Intel Corp. Investment Policy Committee (No. 25-498). The question sounds like a procedural footnote. It isn't. It decides what a 401(k) participant has to know before a court will even listen.
The Question
ERISA requires plan fiduciaries to act with the "care, skill, prudence, and diligence" of a prudent person. When a participant claims a fund was imprudent because it performed badly, how much must the complaint allege to survive a motion to dismiss?
The Ninth Circuit's answer, affirmed May 22, 2025: you must identify a "meaningful benchmark" — a comparator fund with sufficiently similar aims, risks, and objectives. Pointing at a fund that simply did better isn't enough. Anything less, the court wrote, would let plaintiffs "challenge a fiduciary's overall investment strategy rather than their implementation."
The Court granted review on January 16, 2026. Per SCOTUSblog, the Seventh, Eighth, Ninth, and Tenth Circuits require a meaningful benchmark; the Sixth does not. Where you work has been determining whether your case gets heard.
Why the Facts Matter More Than the Doctrine
The Intel plaintiffs challenged custom target-date funds that, after 2008, were deliberately built to cushion downturns. Intel's TDF series held 27–37% in non-traditional assets — hedge funds, private equity, commodities. Its Global Diversified Fund held 56%.
Those funds trailed conventional, equity-heavy target-date funds. But the Ninth Circuit held that ordinary TDFs weren't valid comparators precisely because they were built for growth, not downside protection. Different objective, different benchmark.
Follow the logic: the more unusual a fund is, the fewer comparators exist, and the harder it becomes to challenge. That matters now because the Department of Labor is actively working to make alternatives easier to put on 401(k) menus — the subject of its March 2026 proposed safe harbor. The investments hardest to benchmark are the ones headed your way.
What Litigation Actually Returns to Participants
Before assuming a more permissive standard is a win for savers, look at the economics. Plaintiff firms filed 155 ERISA fiduciary class actions in 2025, 98 involving defined contribution plans — with 94 excessive-fee cases, the most since 2020. Since 2023, more than 120 class settlements have totaled over $665 million.
The participant share of that: a median recovery of $67.79 per person in 2025, while plaintiff firms averaged $1.59 million per case in fees. The median settlement fell to roughly $1.6 million in 2025, about half the $3.0 million median in 2023.
Litigation is a weak individual remedy either way. Its real function is deterrence — which is exactly what's being adjusted.
Practical Takeaways
- Don't wait for the ruling to read your fund. A decision isn't expected until June 2027. Your allocation is live now.
- Find your target-date fund's stated objective. "Capital preservation in down markets" and "long-term growth" are different products. Comparing yours to the wrong one misleads you, not just a court.
- Check the alternatives sleeve. Intel's participants mostly didn't choose hedge funds and private equity — they chose a target-date fund that contained them.
- Use the plan's own benchmark. Every fund names one in its disclosure. If management can't explain why it fits, that's worth asking about at the plan level.
- Treat "it beat my fund" as incomplete. Over any stretch, something outperformed. Risk taken is half the comparison.
Sources: Supreme Court October Term 2026 argument calendar; Question Presented, No. 25-498; Anderson v. Intel, 137 F.4th 1015 (9th Cir. 2025); SCOTUSblog; Encore Fiduciary; Sidley Austin; 401(k) Specialist; PSCA.