The Meaningful Benchmark Standard: What It Is, Why It Matters, and What Is at Stake in Anderson v. Intel

In early October 2026, the Supreme Court will hear oral arguments in Anderson v. Intel Corporation Investment Policy Committee. The case originated in October 2015 when a group of plaintiffs sued Intel, alleging imprudent decisions were made regarding the investment menu in Intel’s defined contribution plan.¹ Following the 2008 financial crisis, Intel’s investment committee intentionally altered the allocation of its proprietary, customized suite of target date funds and global diversified fund to incorporate alternative assets as a deliberate risk-mitigation strategy. When those diversified portfolios underperformed equity-heavy funds during subsequent bull markets, plaintiffs sued, alleging that Intel breached its fiduciary duties by using its risk-mitigation strategy, which led to lower returns than other available funds that had vastly different investment strategies. The comparator funds were allocated almost exclusively to stocks and bonds, and therefore performed better during the bull markets. The U.S. District Court for the Northern District of California dismissed the case, and the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal in May 2025. In January 2026, the U.S. Supreme Court officially agreed to hear the case.

At stake in Anderson v. Intel is whether a “meaningful benchmark” is required of plaintiffs who file imprudent investment lawsuits against their retirement plans. While the Ninth Circuit correctly affirmed dismissal of the case against Intel, not all circuit courts have ruled the same way. This article summarizes the current state of circuit court rulings on meaningful benchmarks heading into oral arguments (including a recent disappointing decision in the Eleventh Circuit), explains the importance of the Supreme Court’s upcoming ruling, and argues that a meaningful benchmark should be necessary, but never sufficient to force a plan sponsor into discovery. But first, some background on a meaningful benchmark and why it matters.

What Is a Meaningful Benchmark?

In ERISA fiduciary litigation, a “meaningful benchmark” is an appropriate comparator investment that is sufficiently similar to the challenged investment – in terms of aims, risks, investment strategy, and potential rewards – to serve as a legitimate basis for inferring fiduciary imprudence from alleged underperformance of the challenged investment. The standard was developed by courts as a threshold pleading requirement: before a plan sponsor can be dragged into expensive discovery on a claim of imprudent fund selection and/or retention, plaintiffs must identify an alternative investment that provides a sound basis for comparison to the challenged investment. It is not enough to simply show that an alternative investment produced better results than the challenged investment over a period of time.

The Ninth Circuit stated when dismissing Anderson v. Intel that a meaningful benchmark requirement is “implicit in ERISA’s text” because comparing a challenged investment to a dissimilar benchmark tells a court nothing about whether the challenged investment itself was imprudent. And the Eighth Circuit put it plainly in ruling on Davis v. Washington University, “comparing apples and oranges is not a way to show that one is better or worse than the other.”²

Earlier this year, the U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) attempted to give meaningful benchmarks a formal regulatory footing. In its proposed rule published on March 31, 2026 – Fiduciary Duties in Selecting Designated Investment Alternatives – EBSA laid out an apples-to-apples requirement as a factor in the prudent selection of designated investment alternatives. Paragraph (k) of the proposal defines a meaningful benchmark, citing authority from the Eighth, Ninth, and Tenth Circuits, as “an investment, strategy, index, or other comparator that has similar mandates, strategies, objectives, and risks to the designated investment alternative.” It further states that when selecting an investment, fiduciaries would be required to compare risk-adjusted expected returns, net of fees, of each investment option against that benchmark as part of a documented, process-based safe harbor.³

DOL Attempted to Require a Meaningful Benchmark Standard from a Safe Harbor Regulatory Perspective – Have Courts Required It from a Legal Perspective?

The short answer is no, at least not with consistency between them, as different circuit courts have ruled differently.

To date, the following circuit courts have held that a meaningful benchmark is required, either in the context of excessive fee or underperformance claims:

• Second Circuit⁴
• Seventh Circuit⁵
• Eighth Circuit⁶
• Ninth Circuit⁷
• Tenth Circuit⁸

Conversely, the following circuit courts have held that no such meaningful benchmark is required in the context of underperformance claims:

• Sixth Circuit⁹
• Eleventh Circuit¹⁰, as discussed further below.

All other circuit courts have yet to rule on the meaningful benchmark issue.

Why a Meaningful Benchmark Standard Matters to Plan Fiduciaries

The meaningful benchmark requirement provides fiduciaries with a critical threshold defense against meritless litigation. Without a meaningful benchmark requirement, any investment fund that trails some better-performing alternative investment fund – a category that encompasses essentially every investment at some point in time – becomes a potential target for underperformance litigation. An excellent example of this is the Anderson v. Intel case itself. A plan fiduciary can make a reasonable judgment that it would be appropriate to protect participants from down-market risk by offering funds that include risk-mitigation strategies that will sacrifice returns in bull markets but protect against the full adverse effect of market downturns. This is a very reasonable approach, which would not be available to plan fiduciaries if such a fund were compared – invalidly – in litigation to a more aggressive fund during a strong market.

Why a Meaningful Benchmark Standard is Not Sufficient to Protect Plan Fiduciaries

A benchmark standard, however, does not fully protect fiduciaries who exercise sound judgment: retaining a fund that has temporarily underperformed a meaningful benchmark clearly is not an indication of a fiduciary breach. The fiduciary and/or the plan’s investment advisor may reasonably believe that the fund is poised to rebound, which would be a legitimate exercise of discretion, precisely the kind of judgment that ERISA was designed to protect.

A recent ruling by the U.S. District Court for the District of Minnesota highlights the serious shortcomings of overreliance on a meaningful benchmark standard. In Batt v. 3M Company, the plaintiffs’ allegations included underperformance of the retirement plan’s target date funds. In this case, to survive a motion to dismiss, the court required the plaintiffs to show underperformance compared to a meaningful benchmark. They alleged six meaningful benchmarks for comparisons – five funds and an index. The court accepted four funds of the six as “sound bases for comparison.” Although only one fund of the four sufficiently outperformed 3M’s funds, that was enough for the plaintiffs’ suit to survive the motion to dismiss:

[Plaintiffs] present five funds and one index; of those, four of the funds are sound bases for comparison. The data show that one of these – target-date funds offered by Fidelity – consistently and significantly outperformed the 3M funds. That raises a plausible inference of imprudence.

This ruling can be interpreted to mean that if a plan offers an investment fund, and any comparable investment fund in the country has consistently and significantly outperformed the plan’s investment fund over a period of time, then that is sufficient to allege an imprudent fiduciary process. Essentially, if any investment fund in a plan is not first in past performance, as virtually all investment funds cannot be, then an underperformance case against that plan could survive a motion to dismiss.

This scenario would force fiduciaries to chase the ‘hot’ best-performing investment funds all the time, which is a proven losing investment strategy over the long term, and retirement plans are exactly that: long-term investments. There is extensive literature that demonstrates that past performance is not only a poor indicator of future performance, but overreliance on past performance can lead to adverse results.

This leads back to a broader point. A comparison to a meaningful benchmark should be required in all alleged underperformance cases, but such a comparison should never be the sole standard to indicate an imprudent fiduciary process and survive a motion to dismiss. If a meaningful benchmark means the top-performing investment fund in a category, material reliance on such a benchmark would lead to chaos, as noted above. If a meaningful benchmark is some type of median fund in a category, reliance on such a benchmark would still do great harm to the entire system by again requiring plans to constantly buy high and sell low, which is clearly imprudent. And those plans that act prudently and do not buy high and sell low would be exposed to non-stop litigation solely because they may retain funds that, on the advice of professional investment advisors, they view as poised to rebound.

The DOL’s proposed rule subtly acknowledges this tension by emphasizing that fiduciaries should assess “the potential value proposition” of any fund, including new or innovative designs, rather than mechanically chasing the best recent comparator performance. The right framework, as reflected in the best lower-court decisions, is that a meaningful benchmark comparison is necessary but not sufficient. Plaintiffs should also be required to allege specific facts reflecting a flaw in the fiduciary’s decision-making process, which should always be afforded deference.

Eleventh Circuit Weighs in Disappointingly in Johnson v. Royal Caribbean Cruises

The most recent circuit court to weigh in on meaningful benchmarks is the Eleventh Circuit, with its ruling in August 2026 overturning the January 2025 decision by the U.S. District Court for the Southern District of Florida, which had granted summary judgment in favor of Royal Caribbean. The plaintiffs in this case argued that the fiduciary’s decision to replace Vanguard’s target date funds with the Russell target date funds was objectively imprudent. The district court ruled for Royal Caribbean because the plaintiffs did not allege imprudence “compared to another target date fund that had the same investment strategy and risk profile.”

The Eleventh Circuit reversed, stating:

We believe the district court erred. An ERISA plaintiff need not identify an apples-to-apples comparison to establish objective imprudence in every case. In this case, Johnson argues that the very features that distinguish the Russell Target Date Funds from otherwise comparable funds are what made the Russell funds an objectively imprudent investment.

How, then, did the plaintiffs successfully allege objective imprudence? According to the court:

[The plaintiff] specifically claimed that the Russell TDF series’ underperformance, “to” glidepath selection, and high fees relative to other TDFs demonstrated that it was an objectively bad investment. . . . [I]t is undisputed that, at the time the Russell TDFs were added to the plan, their returns exceeded a custom benchmark. And, during the four-year class period, the Russell TDFs only slightly underperformed the custom benchmark; their “asset-weighted average underperformance [was] 0.71%.” But the mere fact that the Russell funds were within striking distance of their own custom benchmark does not answer Johnson’s theory of objective imprudence—that the Russell TDFs’ unique features, which were also baked into the custom benchmark, are what made them an objectively imprudent investment to begin with. (internal citations omitted)

In other words, in order to survive a motion to dismiss, all a plaintiff has to say is that a target date fund used the wrong type of glidepath, and the fees were too high (even though the performance was good). This shocking conclusion highlights the need for the Supreme Court to get it right in Anderson v. Intel.

Concluding Perspective

The Supreme Court’s grant of certiorari in Anderson v. Intel places the meaningful benchmark standard directly before the nation’s highest court. The Court’s ruling is crucial for plan sponsors of ERISA retirement plans who remain under attack by plaintiff firms that, with the benefit of hindsight, cherry-pick through plan investment lineups looking for underperforming investments to use as a basis to allege a breach of fiduciary duty.

As Encore Fiduciary documented in January 2026 (https://encorefiduciary.com/erisa-fiduciary-litigation-in-2025-plaintiff-law-firms-continuefrenetic-pace/), more than 600 excessive fee and imprudent investment lawsuits have been filed against ERISA defined contribution plans over the last decade, and individual plan participants typically recover only $55–70 per person from resulting settlements, while plaintiffs’ attorneys have collectively received almost half a billion dollars in fees.

In addition to the monetary amounts, some settlements do include non-monetary relief intended to benefit plan participants. A recent updated study by Davis & Harman LLP (https://www.davis-harman.com/wp-content/uploads/2026/08/2025-DH-Settlement-Survey-Incl.-Non-Monetary-Relief-8-18-2026.pdf) found, however, that only six of close to 30 fee and underperformance settlements last year included terms providing non-monetary relief. Of the six, most simply required actions that are hardly meaningful, such as continued use of a qualified consultant or the issuance of one RFP (request for proposal), with only two adding more meaningful actions than described above.

Requiring an actual abuse of discretion in fulfilling a fiduciary’s duties – not just a hindsight comparison of investment performance without any insight into a fiduciary’s process – would set a pleading standard that weeds out frivolous litigation. A clear ruling by the Supreme Court on meaningful benchmarks – both the need for them and the fact that alone they are not nearly sufficient – that complements the DOL’s regulatory initiative is needed to turn away the meritless cases that currently have too low a bar to file.