Supreme Court oral arguments suggest Intel 401(k) case will require strict performance benchmarks

Key points

• The Supreme Court heard oral arguments on October 6, 2026, in Anderson v. Intel Corp. Investment Policy Committee, a case concerning private investments in Intel’s 401(k) plan.
• The central legal question is whether employees must provide a 'meaningful benchmark' to prove underperformance claims, rather than relying solely on low returns.
• Justices, including Thomas, Kagan, Alito, and Gorsuch, used an 'apples and oranges' metaphor to argue that comparing different risk profiles is invalid, suggesting a likely ruling in favor of Intel.
• Legal experts predict the Court will affirm the Ninth Circuit’s decision, requiring plaintiffs to show comparable performance from similar funds to proceed with imprudence claims.
• The outcome will influence the Department of Labor’s proposed rules on alternative investments, which aim to ease barriers for private equity in 401(k)s but face regulatory uncertainty.
• Large employers may remain cautious about adding private funds due to litigation risks, while smaller companies may adopt them faster once the legal standard is clarified.

Background

This case stems from a 2019 lawsuit by a former Intel employee alleging that the company’s fiduciaries breached their duty of prudence by investing in hedge funds and private equity, which yielded lower returns than traditional assets. The dispute has been influenced by shifting government policies, including a 2020 Labor Department letter supporting alternative investments and a 2021 statement discouraging them. In 2025, President Trump issued an executive order to democratize access to alternative assets, followed by a proposed Labor Department rule in March 2026 to ease regulatory barriers. The Supreme Court’s decision is expected to provide clarity on the legal standards for evaluating investment performance in retirement plans.

How outlets are covering it

CNBC and SCOTUSblog both emphasize the justices’ skepticism toward allowing underperformance claims without a benchmark, noting the 'apples and oranges' metaphor used by multiple justices. SCOTUSblog highlights that the Court may issue a unanimous affirmance of the Ninth Circuit’s ruling. Plansponsor focuses on the practical implications for plan sponsors, suggesting that the case may lead to more uniform benchmarking practices but does not necessarily require immediate changes to current processes. UA.News provides a broader overview, noting that the case does not prohibit alternative investments but may affect how employers approach private funds. All sources agree that the Department of Labor’s proposed rules on alternative investments are pending and may be influenced by the Court’s decision.

Why it matters

The Supreme Court’s ruling in Anderson v. Intel Corp. Investment Policy Committee will set a precedent for how underperformance claims in 401(k) plans are evaluated, potentially requiring plaintiffs to provide a 'meaningful benchmark' to prove imprudence. This decision will influence the Department of Labor’s upcoming rules on alternative investments, which aim to ease barriers for private equity in retirement plans. For employers, the outcome may affect their willingness to include private funds in 401(k) menus, with large companies likely remaining cautious due to litigation risks. The case also highlights the ongoing regulatory uncertainty surrounding alternative investments, which have faced shifting policies since 2020. Ultimately, the ruling could shape the future of private market investments in retirement plans and the legal standards for fiduciary duty under ERISA.

What to watch

The Supreme Court is expected to issue a ruling in the Anderson v. Intel Corp. Investment Policy Committee case in the spring of 2027. The Department of Labor is anticipated to finalize its proposed rule on alternative investments in 401(k) plans after the Court’s decision, potentially incorporating the 'meaningful benchmark' standard. Employers, particularly large companies, may continue to delay adding private funds to their 401(k) menus until the legal landscape is clearer, while smaller and mid-size companies may move faster. Asset managers and plan providers are expected to continue forging partnerships to offer alternative investments, with interest from participants growing. The case may also lead to more uniform benchmarking practices among plan sponsors, as they seek to mitigate litigation risks.