October 6, 2026
The U.S. Supreme Court will hear arguments Tuesday from former Intel Corp. workers looking to revive a suit claiming their retirement savings suffered because of shoddy investments, a case that could shed light on what it takes to keep challenges to allegedly subpar 401(k) offerings alive.
The nation’s highest court accepted a petition from review from ex-Intel workers in January, after the Ninth Circuit affirmed dismissal of their proposed class action under the Employee Retirement Income Security Act in May 2025. The legal fight will give the justices a chance to declare whether providing a meaningful benchmark — essentially comparing a subpar fund to a better one — is required at the motion-to-dismiss stage to state a claim for allegations that fund underperformance breached ERISA’s duty of prudence.
Attorneys are watching to see if Tuesday’s arguments, in which the U.S. solicitor general will argue in favor of affirming dismissal and against reviving the case, may reveal more about what the pleading rules are before an eventual decision in the case.
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How We Got Here
Ex-Intel worker Christopher Sulyma sued in 2015, and the dispute was later consolidated with another dispute from ex-worker Winston Anderson, who sued in 2019. The ex-workers alleged Intel breached its ERISA fiduciary duties of prudence and loyalty by offering a suite of proprietary retirement funds — target-date funds and a diversified fund — in two Intel employee 401(k) plans.
The Ninth Circuit backed dismissal, finding that the ex-workers could have compared the allegedly underperforming funds to better ones but hadn’t, and concluding that general arguments about riskiness and costliness in the complaint weren’t enough.
In a concurrence, U.S. Circuit Judge Marsha S. Berzon wrote that a comparison wasn’t a pleading requirement for a breach of fiduciary duty claim under ERISA, and the statute didn’t require pleading an empirical comparator in the form of a meaningful benchmark. But Judge Berzon wrote that ERISA’s fiduciary provisions defined the legal standard of conduct using comparisons, and those comparisons weren’t sufficient to state a claim.
The lack of meaningful-benchmark language in ERISA’s text is an issue that attorneys will be watching for in the argument discussion Tuesday, including Michelle Yau, chair of the employee benefits and ERISA practice at Cohen Milstein Sellers & Toll LLP.
“I kind of think that both sides agree that you don’t have to plead a meaningful benchmark in all instances to state a claim. … There are other ways to plead imprudence, and so I think they’ll be trying to hammer that out,” Yau said.
Yau compared the issues at stake to what was before the Supreme Court in Hughes v. Northwestern University, another ERISA case about pleading rules for suits involving retirement plan fees and investments. In that case, the justices in 2022 revived workers’ allegations and held that the existence of a better investment option couldn’t rule out claims over worse-performing ones at the motion-to-dismiss stage.
“It feels like it might be an argument much like the Hughes argument, where the justices were all seemingly focused on pretty disparate issues, but then ultimately the decision came out 9-0, right?” Yau said.
“They were all kind of grappling with different hypotheticals and different concerns, but at the end of the day, they reversed 9-0 and left a pretty flexible standard without a ton of guidance,” she added.
“Open the Floodgates”
The outcome of the Supreme Court’s decision is critical, benefits practitioners say, because if the justices require a meaningful benchmark, that would raise the bar for pleadings in many circuits.
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Yau, at Cohen Milstein, said she’s going to be watching for how the justices proceed with the case at hand in comparison to what they did when handling Hughes.
“I actually think that Hughes is probably a guidepost for how this decision could come out because a pretty categorical rule around a particular type of benchmark seems like not something this particular court would endorse,” Yau said.
Read Intel Case May Clarify Dismissal Standard For 401(k) Suits.