Advocacy Groups Urge Supreme Court to Reject ‘Unworkable’ Rule in Intel 401(k) Case

A coalition of retirement and investment advocacy organizations filed an amicus brief in a pending Supreme Court case involving Intel Corp., warning that a lower court’s ruling could make it nearly impossible for workers to challenge mismanaged retirement plans.

The brief—submitted by AARP, the Pension Rights Center, and Better Markets—backs employees suing Intel over the handling of their retirement savings. It argues that the decision being appealed—made by the U.S. 9th Circuit Court of Appeals—imposed an “unworkable” legal standard that threatens protections established by the Employee Retirement Income Security Act.

The Appellate Decision

In Winston R. Anderson, et al. v. Intel Corp. Investment Policy Committee, et al., the Supreme Court will—next term—consider a requirement that plaintiffs identify a “meaningful benchmark” when alleging that retirement funds underperformed. The 9th Circuit defined that benchmark as a nearly identical investment with the same risks and objectives as an investment offered by a retirement plan, something the advocacy groups say is often impossible to find.

“The Ninth Circuit’s rigid standard is not supported by the federal rules of civil procedure or ERISA,” the brief states, contending that it effectively shields fiduciaries who make “outlier” investment decisions from legal scrutiny.

The case stems from allegations that Intel’s retirement plan fiduciaries allocated unusually large portions of employee savings—up to 50%—to hedge funds, private equity and other alternative investments. According to the filing, those allocations far exceeded typical industry levels and led to significant underperformance and higher fees.

The Department of Labor included benchmarking as one of the six factors fiduciaries need to consider under its proposal for evaluating whether riskier investments may be used in a retirement plan investment menu. The DOL’s proposed rule is intended to limit litigation risk when fiduciaries add alternative assets into defined contribution plans by providing a fiduciary framework. The decision in the Intel case would likely provide further clarity on how fiduciaries might consider private asset classes in the DC plan context.

The groups responsible for the amicus filing say the shift toward more alts access increases the importance of strong legal guidance for plan fiduciaries, especially given that most workers lack the financial expertise to evaluate complex investment strategies on their own. The filing cites data showing that many Americans struggle to understand fees, risks and diversification in retirement plans.

The groups also argue that key information about investment decisions—such as internal deliberations and risk assessments—is typically controlled by retirement plan managers, leaving plan participants unable to meet the 9th Circuit’s strict pleading requirements before discovery occurs in a case.

What’s at Stake

According to the brief, the 9th Circuit’s rule could have sweeping consequences, effectively blocking lawsuits that serve as a primary enforcement mechanism under ERISA. Without those cases, the groups warn, fiduciaries will face less accountability for investments that are high-risk or high-cost in violation of ERISA’s prudence and loyalty fiduciary standards.

The filing also emphasizes the real-world impact on retirees: Even modest investment underperformance or higher fees, it states, can significantly erode savings over time, particularly for older Americans who rely heavily on their 401(k) balances for income in retirement.

The Supreme Court is expected to consider the case against Intel in the term that begins in fall 2026, with the outcome likely to shape how retirement plan lawsuits are brought nationwide.

The 9th Circuit hears appeals from federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Anderson was initially filed in 2019 in U.S. District Court for the Northern District of California, where it was dismissed for failing to state a claim. After hearing the appeal in October 2023, a three-judge panel of the 9th Circuit affirmed that decision by a two-to-one margin in May 2025.