A former Intel worker brought suit in 2019, and the Supreme Court is now considering Anderson v. Intel Corp. Investment Policy Committee; the justices heard arguments on Tuesday, Oct. 6. The case isn't about whether alternatives like hedge funds and private equity belong alongside stocks and bonds in a 401(k). The issue is how employees can plead that a plan underperformed - specifically, whether they must present a "meaningful benchmark" to measure results.
Employees argue Intel's relatively weak plan outcomes show a fiduciary breach. The lower courts disagreed, concluding that pointing to returns alone does not cut it without a benchmark that lets a court assess performance.
If you like fruit metaphors, this argument was a harvest. Justice Clarence Thomas captured the Ninth Circuit's stance this way: "you can't compare apples and oranges…if you have a fund…that is designed to produce high returns but riskier returns…you can't compare that to a fund that is to protect against losses."
Justice Elena Kagan kept to the theme, saying, "the thing that you need … is another apple." Justice Samuel Alito pressed the employees' attorney, Matthew Wessler, about whether one could "state a claim by comparing apples and oranges but supplement that with the suggestion that the strategy was flawed." Justice Amy Coney Barrett used the same imagery, and Justice Neil Gorsuch asked Wessler to "agree with the general principle that when we're limited to underperformance claims … a meaningful benchmark of some kind is required, apples, not oranges."
A request for comment from Wessler went unanswered. On rebuttal, he urged the court to consider the allegations together: "I think that matters in a case like this, where you have an allegation about an imprudent either strategy or implementation of that strategy that then turns out badly."
The justices also quizzed Aimee Brown, assistant to the Solicitor General, on how much direction the court should provide. She urged setting "some parameters" for what counts as a "meaningful benchmark," and reminded the court that "Prudence is about process and not about performance."
Legal watchers read the questions as tilting toward Intel and an affirmation of the Ninth Circuit. As Ronald Mann of Columbia Law School put it, "When the justices are asking opposing counsel to pick and choose among the approaches to use in an opinion, it usually is a safe bet that they are not going to vote for you."
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The Employee Retirement Income Security Act of 1974 doesn't spell out rules for alternatives in 401(k)s, but policymakers have shifted course several times.
In June 2020, during the prior Trump administration, the Labor Department issued an Information Letter that then Secretary of Labor Eugene Scalia said was intended to "help Americans saving for retirement gain access to alternative investments that often provide strong returns." In December 2021, under President Biden, the department issued a supplemental statement arguing that many plan fiduciaries were not well positioned to evaluate alternatives, given their complexity and risk, which cooled activity.
The pendulum swung back while Trump was in his second term. He signed an executive order in August 2025 to expand access to alternative investments for 401(k) savers. In October 2025, Congressman Troy Downing introduced the Retirement Investment Choice Act to codify that order. In March, the Labor Department unveiled a proposal intended to relax legal and regulatory hurdles to putting alternatives in retirement plans, with comments due by June 1.
Plenty of plan sponsors are parked in neutral. "I think companies want to know what's going to happen with the proposal and what's going to happen with the Supreme Court case before they go rushing in to change their investment strategies," said Elizabeth Hopkins, who leads Hopkins ERISA Law and previously served as a senior trial attorney at the Labor Department; she submitted a friend-of-the-court brief in the Supreme Court matter on behalf of former senior DOL officials.
Attorneys reading the tea leaves say the Court appears likely to side with Intel. Eugene Scalia, now a partner at Gibson Dunn & Crutcher, said by email, "Private funds can be an effective and entirely appropriate component of 401(k) plan investment options." A ruling for Intel, he added, would reinforce that view and "lend further support to the Labor Department rulemaking." Scalia filed an amicus brief for The American Investment Council and The Managed Funds Association.
"A positive outcome in this case will go a long way toward getting plan sponsors that have wanted to do this for years, but held off, for fear of being sued, feel more confident that they can do this with less fear of being sued," said Joshua Lichtenstein, a partner at Ropes & Gray who leads the firm's ERISA fiduciary practice and co-authored an amicus brief for the Investment Company Institute. He called the DOL proposal "the clearest guidance the department has ever given on the types of information and process that a plan sponsor should go through when making investment decisions."
Even so, big companies may play it safe. Kent Mason, a partner at Davis & Harman, wrote a friend-of-the-court brief in the Intel case for the American Benefits Council and advises prominent companies, sizable plans, and nationwide providers of retirement plan services, said most large firms do not include private investments in their 401(k)s today and are likely to be the slowest to add them. He expects smaller and mid-size employers to move first, even if the Court backs Intel and the DOL finalizes rules. In his view, the proposed six-factor framework remains subjective and plaintiffs' lawyers will still test whether large companies met their fiduciary obligations.
Defined benefit plans already make extensive use of alternatives, and 401(k)s may gradually follow as participants push for it, more products come to market and companies get more comfortable. "There's a clear business case for making sure plans provide employees with a broad base of investment options," said Harvey Bines, partner at Sullivan & Worcester.
What does this mean for your money? Two decisions will set the tone: whether courts require a "meaningful benchmark" for underperformance claims, and what the Labor Department puts in its final rule after the March proposal and June 1 comment deadline. Until then, many large employers are likely to wait while smaller sponsors and product shops keep building toward a world where private investments could sit next to index funds in your 401(k).
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