Supreme Court grants certiorari in Intel hedge fund litigation

On Friday, January 16, 2026, the Supreme Court granted certiorari in (agreed to hear) Anderson, Winston, et al. v. Intel Corp. Inv., et al., litigation challenging the prudence under ERISA of the investment by two Intel defined contribution plans in (plaintiffs claim) “costly and underperforming hedge and private-equity funds.” This case promises to be critical to how courts handle “underperformance” litigation – cases in which plaintiffs challenge the prudence fiduciary/committee investment decisions based on a retrospective (“rear view mirror”) analysis of the targeted plan funds vs. other investment options.

In this article we provide a brief note on the issues in this case.

Background

This litigation has been going on for some time and has already been to the Supreme Court once before (on a statute of limitations issue).

Briefly, beginning in 2009, two Intel plan funds, a target date fund (TDF) and a diversified fund (GDF) began allocating assets to “hedge funds, private equity, and other non-traditional assets like commodities.” Over time these investments became significant. Quoting plaintiffs’ brief:

By 2014, for example, the Intel 2030 TDF had approximately 21% of its assets allocated to hedge funds and 5% to commodities. … [and the GDF] consistently allocated over 50% of fund assets to “alternative” investments such as hedge funds, private equity, and commodities.

As a result (plaintiffs allege) “Intel funds performed worse than comparable funds while charging higher fees, resulting in plan participants losing hundreds of millions of dollars in retirement savings.”

In 2025, the Ninth Circuit Court of Appeals affirmed a decision by the lower court dismissing plaintiffs’ claims. The Ninth Circuit held that “when a plaintiff alleges imprudence based on a fiduciary’s decision to make one investment rather than an alternative, ‘[t]he key to nudging an inference of imprudence from possible to plausible is providing ‘a sound basis for comparison – a meaningful benchmark’ – not just alleging that ‘costs are too high, or returns are too low.’” Critical to this exercise is selecting comparators “with like aims” (quoting language from ERISA). The court concluded that plaintiffs’ “putative comparators were not truly comparable because they had ‘different aims, different risks, and different potential rewards.’”

The issue presented to the Supreme Court

Plaintiffs argue that nothing in ERISA explicitly supports the “meaningful benchmark” requirement imposed by the lower court and that:

The extratextual “meaningful benchmark” requirement adopted by the Ninth Circuit undercuts ERISA’s role in protecting participants and beneficiaries, and it entirely forecloses relief in circumstances where fiduciaries’ conduct is so beyond the pale that no close comparator even exists.

The Supreme Court will now hear and decide this issue.

Status of underperformance litigation

According to ScotusBlog, “Friday’s [January 16, 2026] conference marks the Supreme Court’s last real chance to grant petitions in time for argument at the court’s April sitting – the last sitting of this term.” If that is the case, then the court is (at best) delaying consideration of the certiorari petition in Johnson v. Parker-Hannifin Corporation. The decision by the Sixth Circuit in Parker-Hannifin was seen by many as a departure from the “meaningful benchmark” rule in underperformance cases.

Some view the entire project of establishing imprudence based on underperformance after the fundamental asset allocation decision has been made as misguided, because it is based on a retrospective analysis that could be applied to any fund that “didn’t do as well as expected.”

It’s possible (even likely) that a Supreme Court decision here will bring more clarity (and rationality) to this litigation.

* * *

We have primarily presented the plaintiffs arguments above. We will be following this case as it proceeds to briefing, argument, and a Court decision.