Respondents Brief — Winston R. Anderson, et al., Petitioners v. Intel Corporation Investment Policy Committee, et al.
Supreme Court briefDec 9, 2025
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No. 25-498
In the Supreme Court of the United States
WINSTON R. ANDERSON, ET AL.
PETITIONERS,
v.
INTEL CORPORATION INVESTMENT POLICY COMMITTEE,
ET AL.,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION
MYRON D. RUMELD
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
(212) 969-3000
LISA S. BLATT
Counsel of Record
DAVID S. KURTZER-ELLENBOGEN
CHARLES L. MCCLOUD
KEES D. THOMPSON
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
lblatt@wc.com
QUESTION PRESENTED
Petitioners phrase the question presented as:
Whether,
for
claims
predicated
on
fund
underperformance, pleading that an ERISA fiduciary
failed to use the requisite “care, skill, prudence, or
diligence” under the circumstances and thus breached
ERISA’s duty of prudence when investing plan assets
requires alleging a “meaningful benchmark.”
(I)
II
TABLE OF CONTENTS
Page
INTRODUCTION ............................................................... 1
STATEMENT ...................................................................... 4
Statutory and Factual Background ....................... 4
Procedural Background .......................................... 6
REASONS FOR DENYING THE PETITION ............ 11
I. This Case Does Not Implicate Any Circuit Split...... 12
II. The Ninth Circuit’s Decision Is Correct.................... 20
III.This Case Does Not Warrant the Court’s Review ... 26
IV. Were the Court Inclined To Address the Question
Presented, It Should Grant this Petition in
Addition to Parker-Hannifin ..................................... 29
CONCLUSION .................................................................. 31
III
TABLE OF AUTHORITIES
Page
Cases:
Albert v. Oshkosh Corp.,
47 F.4th 570 (7th Cir. 2022) ................................... 13, 14
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................. 12
Barchock v. CVS Health Corp.,
886 F.3d 43 (1st Cir. 2018) ........................................... 25
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............. 22
Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585 (8th Cir. 2009) .................................. 13, 16
Cheney v. U.S. Dist. Ct. for D.C.,
541 U.S. 913 (2004) ....................................................... 30
Collins v. Ne. Grocery, Inc.,
2025 WL 2383710 (2d Cir. Aug. 18, 2025) .................. 14
Conkright v. Frommert, 559 U.S. 506 (2010) .................... 4
Davis v. Washington Univ. in St. Louis,
960 F.3d 478 (8th Cir. 2020) ...................... 12, 13, 15, 24
Debruyne v. Equitable Life Assurance Soc’y of
the U.S., 920 F.2d 457 (7th Cir. 1990)........................... 5
Ellis v. Fidelity Mgmt. Tr. Co.,
883 F.3d 1 (1st Cir. 2018) ....................................... 25, 28
England v. DENSO Int’l Am. Inc.,
136 F.4th 632 (6th Cir. 2025) ....................................... 18
Fifth Third Bancorp v. Dudenhoeffer,
573 U.S. 409 (2014) ....................................................... 23
Forman v. TriHealth, Inc.,
40 F.4th 443 (6th Cir. 2022) ......................................... 15
Fulton v. FCA US LLC,
2025 WL 2800003 (E.D. Mich. Sept. 30, 2025) .... 18, 19
Gobeille v. Liberty Mut. Ins. Co.,
577 U.S. 312 (2016) ....................................................... 27
Hughes v. Nw. Univ., 595 U.S. 170 (2022) ..................... 3, 5
IV
Page
Cases—continued:
Johnson v. Parker-Hannifin Corp.,
122 F.4th 205 (6th Cir. 2024),
cert. pending No. 24-1030 ... 2-3, 12, 14-15, 17-20, 28-31
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ....................................................... 31
Massachusetts Mut. Life Ins. Co. v. Russell,
473 U.S. 134 (1985) ....................................................... 27
Matney v. Barrick Gold of N. Am.,
80 F.4th 1136 (10th Cir. 2023) ............................... 14, 23
Matousek v. MidAmerican Energy Co.,
51 F.4th 274 (8th Cir. 2022) ................................... 13, 27
Meiners v. Wells Fargo & Co.,
898 F.3d 820 (8th Cir. 2018) ................... 8, 12-15, 21, 23
PBGC ex rel. St. Vincent Catholic Med. Ctrs. Ret.
Plan v. Morgan Stanley Inv. Mgmt. Inc.,
712 F.3d 705 (2d Cir. 2013) ................................ 5, 10, 26
Pizarro v. Home Depot, Inc.,
111 F.4th 1165 (11th Cir. 2024) ............................. 25, 28
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ............ 4
Singh v. Deloitte LLP, 123 F.4th 88 (2d Cir. 2024) ........ 14
Smith v. CommonSpirit Health,
37 F.4th 1160 (6th Cir. 2022) ................................. 15, 20
Stegemann v. Gannett Co., Inc.,
970 F.3d 465 (4th Cir. 2020) ........................................ 21
Students for Fair Admissions, Inc. v. President
& Fellows of Harvard Coll.,
600 U.S. 181 (2023) ....................................................... 31
Tibble v. Edison Int’l, 575 U.S. 523 (2015) .................. 4, 27
Va. Mil. Inst. v. United States,
508 U.S. 946 (1993) ....................................................... 29
Varity Corp. v. Howe, 516 U.S. 489 (1996) ........................ 4
V
Page
Statutes, Regulation, and Rules:
28 U.S.C.
§ 1104 ................................................... 3, 4, 20, 22, 23, 25
§ 1254 ............................................................................. 29
29 C.F.R. § 2550.404a-1 ................................................. 4, 25
Fed. R. Civ. P.
8 ...................................................................................... 22
12 ........................................................................ 11, 22, 23
Other Authorities:
Pet. for Cert., Parker-Hannifin Corp. v. Johnson
(No. 24-1030) ............................................................. 2, 17
Robert L. Stern, Eugene Gressman & Stephen M.
Shapiro, Supreme Court Practice § 4.18
(11th ed. 2019) ............................................................... 29
In the Supreme Court of the United States
NO. 25-498
WINSTON R. ANDERSON, ET AL.
PETITIONERS,
v.
INTEL CORPORATION INVESTMENT POLICY COMMITTEE,
ET AL.,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION
INTRODUCTION
The 2008 stock market crash caused many
participants in equity-heavy retirement funds to lose
nearly half their retirement assets. To guard against a
recurrence, the fiduciaries for two Intel Corporation
retirement plans (the “Plans”) adopted a strategy of
risk-mitigation rather than return-maximization. The
fiduciaries (“Respondents”) created customized, broadly
diversified portfolios that included not only stocks and
bonds but also holdings in hedge funds and private equity
funds, which are common in large institutional investment
(1)
2
products.
Respondents recognized—and repeatedly
disclosed—that their risk-mitigation strategy would
deliver lower returns during a bull market than
equity-heavy funds, and would carry the higher fees
typically charged for actively-managed investments.
Petitioners sued several years later, claiming that
Respondents violated their duty under ERISA to act
prudently in managing the Plans. Their complaint
charged
imprudence
based
on
the
alleged
“underperformance” of the funds in the Plans. But as the
courts below recognized, “underperformance” is a
relative measure. And Petitioners’ pleadings compared
the funds in the Plans only to equity-heavy retail funds
and indices with different aims, different risks, and
different objectives. Because no plausible inference of
imprudence was available, the district court dismissed
and the Ninth Circuit affirmed.
Petitioners contend that the Ninth Circuit thereby
split with the Sixth Circuit 1 over whether allegations of
investment
imprudence
predicated
on
fund
underperformance require plaintiffs to plead a
“meaningful benchmark” for comparison. Petitioners are
incorrect. No circuit holds that such a claim of investment
imprudence always requires pleading a meaningful
benchmark. Rather, every circuit to consider the question
recognizes that dismissal is appropriate where, as here, a
plaintiff claiming “underperformance” supports that
contention only by comparing apples to oranges. That
includes the Sixth Circuit. In Parker-Hannifin, the
plaintiff successfully stated a claim based on allegations
far different from those made by Petitioners here. That
does not mean there is any circuit split in how a plausible
Johnson v. Parker-Hannifin Corp., 122 F.4th 205 (6th Cir. 2024),
pet. for cert. filed, No. 24-1030 (Mar. 28, 2025).
1
3
claim may be pleaded. At a minimum, further percolation
is necessary so that the Sixth Circuit can clarify whether
it intended Parker-Hannifin to be a sea change in its own
law.
The Ninth Circuit’s decision is also correct on the
merits. This Court has repeatedly held that because “the
circumstances facing an ERISA fiduciary will implicate
difficult tradeoffs,” courts “must give due regard to the
range of reasonable judgments a fiduciary may make
based on her experience and expertise.” Hughes v. Nw.
Univ., 595 U.S. 170, 177 (2022). Requiring that apples be
compared to apples helps courts implement that directive
by avoiding the kind of hindsight-driven speculation that
permeates Petitioners’ complaint. The standard is also
consistent with ERISA’s text, which grounds the duty of
prudence in “the conduct of an enterprise of a like
character and with like aims.” 29 U.S.C. § 1104(a)(1)(B)
(emphasis added).
In any event, this case would be an odd vehicle for
addressing the question presented. Petitioners take issue
with Respondents’ decision to mitigate risk in the first
place, unlike in more typical ERISA suits focused only on
alleged imprudence in implementing a strategy. The
atypical nature of the allegations would limit any guidance
this Court could offer the lower courts.
For these and other reasons, the petition should be
denied. There is similarly no reason to hold this petition
pending the resolution of the petition in Parker-Hannifin. But if the Court grants review in Parker-Hannifin,
it should grant review in this case as well to ensure that
the full Court can address the question presented free of
any recusal issues. See Entry dated June 30, 2025, Dkt.
No. 24-1030 (noting Justice Alito’s recusal from ParkerHannifin).
4
STATEMENT
Statutory and Factual Background
1. Enacted in 1974, ERISA protects employee
pensions and other benefits by providing insurance for
vested pension rights, specifying certain plan
characteristics, and setting forth general fiduciary duties.
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 (1983).
The statute “represents a ‘careful balancing’ between
ensuring fair and prompt enforcement of rights under a
plan and the encouragement of the creation of such
plans.” Conkright v. Frommert, 559 U.S. 506, 517 (2010)
(citation omitted). This Court has explained that, in
interpreting ERISA, courts should consider the
“competing congressional purposes, such as Congress’
desire to offer employees enhanced protection for their
benefits, on the one hand, and, on the other, its desire not
to create a system that is so complex that administrative
costs, or litigation expenses, unduly discourage employers
from offering welfare benefit plans in the first place.”
Varity Corp. v. Howe, 516 U.S. 489, 497 (1996).
For fiduciaries entrusted with the administration of
employee benefit plans, ERISA imposes a “prudent man”
standard of care. 29 U.S.C. § 1104(a)(1)(B). In line with
the common law of trusts, this duty of prudence requires
plan fiduciaries to exercise “the care, skill, prudence, and
diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of
a like character and with like aims.” Id.; see also 29 C.F.R.
§ 2550.404a-1(b)(1) (implementing regulations for
fiduciaries’ “investment duties”). Practically speaking,
this duty requires plan administrators to select initial
investment options with care, monitor those investments,
and remove imprudent ones as needed. Tibble v. Edison
Int’l, 575 U.S. 523, 529-30 (2015).
5
Regarding investment decisions in particular, ERISA
“requires prudence, not prescience.”
Debruyne v.
Equitable Life Assurance Soc’y of the U.S., 920 F.2d 457,
465 (7th Cir. 1990) (citation omitted).
Thus, an
imprudence claim against a fiduciary turns on “a
fiduciary’s actions based upon information available to the
fiduciary at the time of each investment decision and not
from the vantage point of hindsight.” PBGC ex rel. St.
Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley
Inv. Mgmt. Inc. (“St. Vincent”), 712 F.3d 705, 716 (2d Cir.
2013) (citation omitted). In other words, what matters is
the fiduciary’s “conduct in arriving at an investment
decision, not on its results.” Id. at 717. Moreover, “the
prudence of each investment is not assessed in isolation
but, rather, as the investment relates to the portfolio as a
whole.” Id. This standard recognizes that “[a]t times, the
circumstances facing an ERISA fiduciary will implicate
difficult tradeoffs, and courts must give due regard to the
range of reasonable judgments a fiduciary may make
based on her experience and expertise.” Hughes, 595 U.S.
at 177.
2. This case arises from certain retirement plans that
Intel Corporation offers its employees as a benefit of their
employment—the Intel Retirement Contribution Plan
and the Intel 401(k) Savings Plan (“the Plans”). App. 5a6a. Among other investment options, these plans include
two types of customized funds relevant here: a “multiasset portfolio with a fixed allocation model” called the
Global Diversified Fund (“GDF”), and several blended
funds called Target Date Funds (“TDFs”). The TDFs
“use a dynamic allocation model” whereby the relative
allocation of assets “changes over time” based on a
participant’s estimated retirement date. App. 37a. An
express objective of both the GDF and the TDFs (the
“Intel Funds”) is to “reduce investment risk by investing
in assets whose returns are less correlated to equity
6
markets.” App. 13a. In other words, the conservative
Intel Funds were designed not to chase maximum
returns, but rather to guard against downside risk.
The Intel fiduciaries put this risk-reduction strategy
in place following the 2008 stock market crash, when some
equity-heavy funds lost nearly half their value. App. 6a7a. Specifically, Respondents diversified the funds’
holdings to include “non-traditional assets,” including
investments in hedge funds and private equity vehicles.
Id.
Respondents expressly disclosed that their strategy
would yield lower returns than an equity-heavy approach
during a bull market, but would mitigate the risk of large
losses during an equity market downturn like the 2008
stock market crash. App. 13a. Respondents also
disclosed that, because this risk-mitigation strategy
included allocations to assets like hedge funds and private
equity, it would carry higher active management fees. 2ER-229; 2-ER-249-50.
Intel’s strategy performed as intended and as
disclosed to employees, producing positive returns while
cushioning participants against stock market volatility.
From 2011 through 2018, the GDF in particular exceeded
its modest target of a 5% real annual return, 2-ER-235,
and it even “outperformed 80% of the largest funds in the
Morningstar World Allocation Category” between 2008
and 2018. App. 62a. But as was expected, during the
remarkable bull-market period running from 2011
through 2018, the Intel Funds did not keep pace with the
returns of funds with much greater equity market
exposure. 2-ER-229; 2-ER-250.
Procedural Background
1. Petitioners Christopher Sulyma and Winston
Anderson are former Intel employees who participated in
7
the Plans and invested in the Intel Funds. App. 34a. In
October 2015, Sulyma sued Respondents—fiduciaries for
the Plans—in the United States District Court for the
Northern District of California, challenging their
management of the Plans and alleging breaches of
ERISA’s fiduciary duties. App. 40a. The district court
granted summary judgment on all claims in favor of the
fiduciaries, concluding that the claims were time-barred.
App. 43a. Sulyma appealed, the Ninth Circuit reversed,
and this Court affirmed. Id.
In August 2019, while Sulyma was on appeal,
Anderson sued substantially the same defendants on
substantially the same allegations and claims of
imprudent investment. App. 43a-44a. Those claims were
stayed until the resolution of the Sulyma appeal, after
which the cases were consolidated in the district court,
before a new district judge, in 2020.
On June 24, 2020, Petitioners filed their first
consolidated class action complaint. Id. That complaint
maintained as defendants 21 individuals (primarily
current and former Intel employees and directors) who
served as fiduciaries to the Plans since 2009. App. 34a35a. As relevant here, Petitioners contended that
Respondents acted imprudently both by initially
allocating some of the Plans’ assets to hedge funds and
private equity funds and by failing to adjust that
allocation during the bull market, as hedge funds and
private equity funds were producing lower returns than
those available from funds holding only more traditional
assets like stocks and bonds. App. 9a. 2
Petitioners also alleged that Respondents breached their duty of
loyalty under ERISA by steering Plan funds to investment managers
with whom Intel’s venture-capital arm had already invested, thereby
2
8
2. The district court dismissed the complaint for
failure to state a claim. 1-ER-72. As relevant here, the
court rejected the imprudence claim because Petitioners
failed to allege facts sufficient for a plausible inference of
imprudence based on a performance comparison of the
Intel Funds to other funds, because they failed to show
that those comparator funds were comparable to the Intel
Funds. The district court granted leave to amend, and
Petitioners filed an amended complaint in March 2021.
The district court dismissed the claims in Petitioners’
amended complaint with prejudice. App. 34a. 3 As with
the prior dismissal order, the court concluded that
Petitioners had failed to plead a viable imprudence claim
because they again neglected to plead any valid
comparator against which to assess the Funds. App. 55a.
Where a plaintiff alleges that “a prudent fiduciary in like
circumstances would have selected a different fund based
on the cost or performance of the selected fund,” a
plaintiff must provide “a sound basis for comparison—a
meaningful benchmark,” in order to satisfy the
Iqbal/Twombly plausibility standard. App. 52a (quoting
Meiners v. Wells Fargo & Co., 898 F.3d 820, 833 (8th Cir.
2018)). The district court noted that Petitioners, by
contrast, simply asserted that the comparators were
“common benchmarks” and pleaded generic features that
are common to all target-date funds, rather than
purportedly reducing Intel’s own investment risk. The district court
dismissed that claim based on the absence of allegations of an actual
conflict of interest or self-dealing. App. 68a-83a. The court of appeals
affirmed, and Respondents do not seek review of that portion of the
decision below in this Court.
3
One individual (non-class) count for failure to provide documents
upon request in violation of ERISA was later dismissed with
prejudice by stipulation. App. 32a.
9
explaining why the putative comparators had “similar
aims, risks, and potential rewards.” 4 App. 52a, 57a.
The district court also rejected Petitioners’ alternate
theory that they need not compare the Intel Funds to any
benchmarks with similar characteristics because the
overall investment strategy was imprudent. App. 65a.
The court noted that Petitioners did not “cite a single case
to support their new theory that a risk mitigation strategy
can be deemed imprudent under the law,” explaining that
ERISA fiduciaries are not required to adopt a riskier
strategy simply because that strategy may increase
returns. App. 66a-67a.
3. The Ninth Circuit affirmed. The panel held that
Petitioners failed to state a claim for breach of ERISA’s
duty of prudence because they did not plausibly allege
that the Intel Funds underperformed other funds with
comparable aims. App. 5a, 13a. Noting that courts
“evaluate prudence prospectively, based on the methods
the fiduciaries employed, rather than retrospectively,
based on the results they achieved,” the panel explained
that “it is not enough for a plaintiff simply to allege that
the fiduciaries could have obtained better results”—
rather, a plaintiff must provide “some further factual
enhancement” for an inference of imprudence to be
plausible. App. 10a-11a. The court of appeals observed
that the need for an apples-to-apples comparison “is
implicit in ERISA’s text.” App. 12a. “By making the
standard of care that of a hypothetical prudent person
‘acting in a like capacity . . . in the conduct of an enterprise
of a like character and with like aims,’ the statute makes
clear that the goals of the plan matter.” App. 12a.
Petitioners’ proposed benchmarks were the S&P 500, Intel TDFs’
Morningstar “peer group category,” and four identified TDF fund
families. App. 61a.
4
10
Turning to Petitioners’ allegations, the court
determined that Petitioners’ putative comparators were
not comparable to the Intel Funds because they had
“different aims, different risks, and different potential
rewards.” App. 14a (citation omitted). The court applied
the same reasoning to Petitioners’ allegations regarding
the Intel Funds’ higher fees, explaining that “comparison
to off the-shelf funds that did not seek to mitigate risk to
the same degree as Intel’s funds is not enough” to show
that the Intel Funds’ fees were so excessive as to suggest
that the fiduciaries neglected to follow a prudent process
of management. App. 15a.
Next, the court rejected Petitioners’ fallback
argument that they could not have pleaded a meaningful
benchmark because there are “no meaningful
comparators for the fiduciaries’ decision,” in that Intel’s
allocation to hedge funds and private equity “was unusual,
if not unparalleled.” App. 15a. The court noted that this
argument “conflates the risk-mitigation objective of the
Intel funds with the allocation decisions made to
implement that objective.” Id. And even if Petitioners
were challenging the implementation of the Plans’ riskminimization strategy based on contended risks inherent
to hedge funds and private equity funds, such a per se
challenge would still fail, because “the prudence of each
investment is not assessed in isolation but, rather, as the
investment relates to the portfolio as a whole.” App. 16a
(citing St. Vincent, 712 F.3d at 717).
Judge Berzon concurred in full in the majority
opinion, writing separately to clarify that an imprudence
claim does not require allegations of comparative
performance or fees. A plaintiff can plead “facts that
directly show that the fiduciary’s methods, processes, or
objectives were imprudent,” or other circumstantial
allegations that plausibly suggest imprudence. App. 25a,
11
31a. Judge Berzon noted that “[t]here are a myriad of
circumstances that could violate the [prudent man]
standard, so there is no fixed formula for the facts from
which we might infer imprudence.” App. 26a (citation
omitted).
The ultimate question, Judge Berzon
emphasized, is “whether the facts alleged—comparative
or not—lead to the plausible inference that the actual
process used by the defendant fiduciary was flawed.”
App. 31a. Judge Berzon agreed that, in this case,
Petitioners failed to plead facts that supported an
imprudence claim either directly or inferentially. Id.
4. Petitioners declined to seek rehearing en banc, and
no Ninth Circuit judge called for rehearing.
REASONS FOR DENYING THE PETITION
Petitioners (at 1-2) argue that the Ninth Circuit
imposed an extra-statutory pleading test that
contravenes this Court’s precedent and risks stymieing
meritorious imprudence claims against reckless
fiduciaries. That assertion is inaccurate, and rests on an
apparent misunderstanding of imprudence claims, the
Ninth Circuit’s opinion, and the decisions of the other
circuits. The Ninth Circuit applied the typical Rule
12(b)(6) analysis to examine the factual allegations in
Petitioners’ complaint and confirmed that Petitioners
failed to state a claim for breach of the duty of prudence.
In unanimously affirming dismissal, the court did not
impose any “categorical pleading rule” specific to ERISA
duty of prudence claims. Nor did the court pick sides in
any purported circuit split. Rather, it held only that the
particular claims here yielded no plausible inference of
imprudence because the complaint failed to explain why it
was relevant that the return of the Intel Funds was lower
than Petitioners’ cherry-picked comparators with
different goals and investing strategies than the Intel
12
Funds. In any event, Petitioners gloss over substantial
vehicle issues that are almost as formidable as those
impeding certiorari in Parker-Hannifin.
I.
This Case Does Not Implicate Any Circuit Split
1. Petitioners suggest that the courts of appeals are
divided 4-1 over whether ERISA claims premised on a
fund’s underperformance require comparison to a
meaningful benchmark in order to state a claim. In fact,
all courts of appeals that have addressed such claims
agree on the basic framework, which the Ninth Circuit
applied in the decision below.
Start with the Eighth Circuit. It has explained that a
plaintiff alleging that “a prudent fiduciary in like
circumstances would have selected a different fund based
on the cost or performance of the selected fund . . . must
provide a sound basis for comparison—a meaningful
benchmark.” Meiners, 898 F.3d at 822 (internal quotation
marks omitted). In Meiners, the court affirmed dismissal
for failure to state a claim because the complaint provided
no explanation as to why the allegedly “comparable” fund
that outperformed the fund at issue was in fact a
comparable choice at the time the investment decision was
made.
Dismissal was appropriate because the
imprudence claim “lack[ed] ‘sufficient factual matter,
accepted as true,’ to demonstrate that the [selected funds]
were an imprudent choice.” Id. at 823 (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). “Comparing apples and
oranges is not a way to show that one is better or worse
than the other.” Davis v. Wash. Univ. in St. Louis, 960
F.3d 478, 485 (8th Cir. 2020) (rejecting claim where
allegedly comparable options had “different aims,
different risks, and different potential rewards that cater
to different investors”).
13
This is by no means an insurmountable hurdle to
pleading a plausible claim. In Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585 (8th Cir. 2009), for example, the Eighth
Circuit determined that the allegations were sufficient for
an inference of an imprudent process where the complaint
detailed how both the market index and lower-cost shares
of the same fund with an identical strategy (i.e., tracking
the index) performed better than the options selected by
the defendant fiduciaries. Id. at 595-96. Because the only
difference between the available options was their varying
costs, those allegations supported the inference that the
underperforming funds were imprudently chosen
“despite the ready availability of better options.” Id. at
596. Braden dispenses with Petitioners’ notion that
requiring allegations that substantiate the basis for a
comparison between funds or investments “immunizes
fiduciaries from liability.” Pet. 2. Rather, when it comes
to pleading a meaningful benchmark, “there is no onesize-fits-all approach,” as a claim’s plausibility “depends
on the ‘totality of the specific allegations.’” Matousek v.
MidAmerican Energy Co., 51 F.4th 274, 280-81 (8th Cir.
2022) (first citing Meiners, 898 F.3d at 822; and then citing
Braden, 588 F.3d at 595-96).
Other circuits agree with the commonsense
conclusion that for a plausible inference of imprudence to
arise from asserted underperformance, the comparison
has to be to something comparable. Thus, in Albert v.
Oshkosh Corp., 47 F.4th 570 (7th Cir. 2022), the Seventh
Circuit—like the Eighth Circuit in Davis—examined
allegations that the selection of certain actively managed
funds was evidence of an imprudent process because
other, passively managed funds charged lower fees. Id. at
581. But as discussed above, actively managed funds
commonly have very different objectives than passive
funds designed to track an index, making it unremarkable
that the fees or returns differ. Because the plaintiff failed
14
to plead “a ‘sound basis for comparison’” between the
active versus passive funds, dismissal was warranted. Id.
at 582 (quoting Meiners, 898 F.3d at 822).
The same is true in the Tenth Circuit. In Matney v.
Barrick Gold of North America, 80 F.4th 1136 (10th Cir.
2023), the plaintiffs challenged the fees charged by certain
plan investments compared to alleged comparator
investments. Id. at 1148. The court surveyed the case law
in several other circuits before agreeing that “an
inference of imprudence” grounded in comparisons
requires the plaintiff to articulate why those comparators
are “a ‘meaningful benchmark.’” Id. (quoting Meiners,
898 F.3d at 822). And there, the complaint lacked
“information about the goals or strategies of the various
[alternatives] so as to establish their comparability.” Id.
at 1153. 5
2. Arguing that there is a circuit split, the Petitioners
here and in Parker-Hannifin suggest that the Sixth
The Second Circuit appears to agree. In Collins v. Northeast
Grocery, Inc., 24-2339-cv, 2025 WL 2383710 (2d Cir. Aug. 18, 2025)
(summary order), the court noted that a “fund’s underperformance
relative to comparator funds may support an inference of
imprudence, but Plaintiffs [a]re required to allege ‘meaningful’
benchmarks against which to compare the criticized funds.” Id. at *2
(emphasis and citations omitted). In that instance, while the plaintiffs
named allegedly better-performing comparators in their complaint,
they “did not allege any factual basis from which to infer that the
purported comparators were appropriate.” Id.; see also Singh v.
Deloitte LLP, 123 F.4th 88, 96 (2d Cir. 2024) (affirming dismissal of
duty of prudence claim based on allegedly high recordkeeping fees
because of absence of details regarding services provided by
proposed comparator plans that would make them “meaningful
benchmark[s] for use in assessing the Plan’s recordkeeping fees”).
5
15
Circuit has departed from the approach taken by other
circuits. But the case law does not bear that out.
In Smith v. CommonSpirit Health, 37 F.4th 1160 (6th
Cir. 2022), the plaintiff brought an imprudence claim
because the plan’s actively managed funds cost more and
performed worse than certain passively managed funds
identified as comparators. Id. at 1164. Writing for the
Sixth Circuit, Chief Judge Sutton affirmed dismissal,
noting that “a showing of imprudence [does not] come
down to simply pointing to a [different] fund with better
performance.” Id. at 1166. Rather, when making such a
comparison, a plaintiff must offer an appropriate
comparator and not one with, for example, “separate goals
and separate risk profiles.” Id. at 1166-67. The court cited
the Eighth Circuit’s rulings in Meiners and Davis and
noted that its “reasoning also lines up with” those
decisions. Id. at 1166.
Soon after, in Forman v. TriHealth, Inc., 40 F.4th 443
(6th Cir. 2022), the court determined that the plaintiffs
had failed to state a claim of imprudence based on
excessive fees where they “never alleged that these fees
were high in relation to the services that the plan
provided.” Id. at 449 (emphasis added). As relevant here,
the Sixth Circuit reaffirmed its reasoning from
CommonSpirit and explained that a plaintiff seeking to
rely on comparative analysis “must do the work of
showing that the comparator investment has sufficient
parallels to prove a breach of fiduciary duty.” Id. at 451.
Next up was Parker-Hannifin, which in no way
altered Sixth Circuit law. There the court evaluated
allegations that the fiduciary imprudently retained
certain underperforming funds (i.e., the “Focus Funds”),
provided participants with needlessly higher-cost shares
of those funds, and failed to monitor its agents in their
fiduciary duties. 122 F.4th at 209-12. As relevant here,
16
the plaintiff’s imprudent-retention theory alleged that a
prudent fiduciary would have jettisoned the Focus Funds
given their high turnover rate (i.e., how often the fund
swapped in/out investments) and persistent subpar
performance (i.e., their market value). Id. at 213-16.
Examining whether the allegations, “taken together,
sufficiently state a claim for imprudence under ERISA,”
the court first summarized its case law, including
CommonSpirit and Forman, and noted that “a plaintiff is
permitted to point to a higher-performing fund—in
conjunction with additional context-specific evidence—to
demonstrate imprudence.” Id. at 216. On the specific
allegations before it, the court determined that the
plaintiff had successfully done so by pleading facts about
an S&P target date fund that “share[d] the same goals,
strategies, and risks as” the Focus Funds, both of which
were “designed to replicate” passive indices. Id. at 217. 6
The S&P target date fund benchmark was “a meaningful
comparison” in this instance because of the specific
“investment goal” of the Focus Funds. Id. The court
noted that in a similar context the Eighth Circuit decided
that a market index served as a meaningful benchmark to
the fund at issue in that case, and so the court “br[oke] no
‘new ground’” here. Id. (citing Braden, 588 F.3d at 596).
The court then decided that an imprudent process could
also be inferred through the company’s retention of the
Focus Funds despite the “persistent upheaval of the
Funds’ assets and turnover rates many times higher
than” normal. Id. at 219 (cleaned up). Summing up, the
court explained that the “high historical turnover rates
Because the court determined that the S&P target date fund was a
meaningful benchmark, it declined to determine whether three
additional benchmarks pleaded in the complaint were also valid
comparators. Id. at 219 n.5.
6
17
and persistent underperformance relative to the Funds’
stated objectives suggest[]” an imprudent process. Id.
In contending that there is a circuit split, the ParkerHannifin petitioner seizes on that panel’s throat-clearing
statement that “a meaningful benchmark is not required
to plead a facially plausible claim of imprudence.” Pet. for
Cert. at 1, Parker-Hannifin Corp. v. Johnson, No. 241030 (Mar. 26, 2025). But that is not a departure from the
standard applied in other courts. As explained above,
supra pp. 11-12, ERISA plaintiffs can plausibly plead
imprudence in various other ways, including through
direct allegations of an imprudent process, as well as
through indirect allegations that do not rely on
performance comparisons. Indeed, the crux of Judge
Berzon’s concurrence in the decision below is that
“comparisons are not the only form of indirect allegation
that could support” an imprudence claim. App. 26a. So a
“meaningful benchmark may sometimes be one part of an
imprudence pleading, but it is not required.” ParkerHannifin, 122 F.4th at 216. While the Parker-Hannifin
petitioner may disagree with the Sixth Circuit’s
application of the principle at issue to the facts of the
case, at no point did the court reject a plaintiff’s
obligation, when trying to root an inference of imprudence
in an investment fund’s “underperformance,” to plead
facts showing why the comparison is a valid one.
Nor does Judge Murphy’s dissent illuminate any
circuit split. Judge Murphy stated that “[i]f [his
colleagues] mean to suggest that plaintiffs need not
identify such a benchmark when relying on an
investment’s relative underperformance, they depart
from our law and create a circuit split.” Id. at 232
(Murphy, J., dissenting) (first emphasis added). As noted,
however, that is not what the Sixth Circuit held.
Moreover, Judge Murphy noted his “agree[ment] that”
18
the pleading standard “does not require a meaningful
benchmark in all cases,” as allegations substantiating the
basis for a comparison between funds are necessary only
where a “complaint tries to make out a case of imprudence
based on the . . . superior returns” of “an alternative
investment.” Id.
The disagreement between the Parker-Hannifin
majority and dissent thus concerns not whether the
plaintiff sought an inference of imprudence based on the
Focus Funds’ relative underperformance (he did so), or
whether he needed to plead a valid comparator grounded
in context-specific evidence to substantiate the alleged
underperformance (he did need to do so), but the
fact-bound question of whether he had done so—i.e.,
whether “the S&P target-date benchmark qualifies as a
‘meaningful’ one” based on the details (or lack thereof)
pleaded in the complaint about that benchmark. Id. This
fact-specific disagreement over application of the
meaningful-benchmark standard creates no circuit split.
3. Had the Sixth Circuit’s decision amounted to any
sea change in the pleading standard, the ripples would be
apparent in the lower courts. There are none. For
example, in England v. DENSO International American
Inc., 136 F.4th 632 (6th Cir. 2025), in examining an
imprudence claim based on a plan’s allegedly excessive
fees for recordkeeping services compared to comparable
plans, the court cited Parker-Hannifin as an example of
cases endorsing a “meaningful benchmark” standard. Id.
at 636-37. 7 At a minimum, these subsequent decisions—
Similarly, in Fulton v. FCA US LLC, No. 24-cv-13159, 2025 WL
2800003 (E.D. Mich. Sep. 30, 2025), the district court cited ParkerHannifin for the rule that while comparison to a fund with better
performance may “offer a building block for a claim of imprudence,
the comparison alone is insufficient to demonstrate a breach of
7
19
which characterize Parker-Hannifin as falling in line
behind prior Sixth Circuit precedent—suggest that this
Court should not grant certiorari on this issue until any
meaningful differences develop in the way courts in the
various circuits actually apply the pleading standard.
4. Finally, even if there were a split among the
circuits on the pleading standard, it would not be
implicated here because Petitioners’ claims would fail
even in the Sixth Circuit. As explained, Parker-Hannifin
held that the S&P target date benchmark was a
“meaningful” comparator to the Focus Funds because the
Focus Funds were passively managed target date funds
that were “designed to meet industry-recognized”
benchmarks such as the S&P target date fund. 122 F.4th
at 217. Critical to the court’s analysis was the fact that the
complaint “pleaded that the Focus Funds were
‘attempting to mimic’ the S&P target date fund” in
particular, thereby “making it a meaningful benchmark.”
Id.
Here, by contrast, Petitioners have sued over the
alleged underperformance and fees of the bespoke,
actively managed GDF and TDFs with different goals
than traditional equity-driven benchmarks such as those
Petitioners identified. See App. 13a. The Sixth Circuit
would recognize the incongruence and swiftly reject
Petitioners’ putative comparators as insufficient for a
meaningful comparison. See Parker-Hannifin, 122 F.4th
at 217 (accepting the petitioner’s proposed comparators
fiduciary duty” without “additional context-specific evidence” that
demonstrates that the comparator is suitable. Id. at *6 (internal
quotation marks omitted). Far from rejecting the need for a
meaningful benchmark, the district court looked for, analyzed, and
scrutinized several benchmarks pleaded by the plaintiffs before
declaring them sufficiently similar to the funds at issue to justify an
inference of imprudence. Id. at *6-8.
20
only because, as “industry-recognized benchmarks” that
the Focus Funds were “designed to replicate,” they “[b]y
definition . . . share[d] the same goals, strategies, and
risks as the” Focus Funds); CommonSpirit, 37 F.4th at
1167 (“Just as comparison can be the thief of happiness in
life, so it can be the thief of accuracy when it comes to two
funds with separate goals and separate risk profiles.”).
In addition, in Parker-Hannifin the Sixth Circuit
bolstered its conclusion that an inference of imprudence
was plausible by noting that the “allegations of high
turnover rate and underperformance, taken together,”
were sufficient. 122 F.4th at 216 (emphasis added). That
Parker-Hannifin “retained the Focus Funds despite
‘persistent’ ‘upheaval’ of the Funds’ assets and turnover
rates many times higher than” normal provided yet more
reason to infer imprudence. Id. at 219 (citation omitted).
Petitioners here, however, rely on no such additional
factual enhancements.
Facing materially weaker
circumstantial allegations of imprudence, the Sixth
Circuit would similarly affirm dismissal of the claims.
II. The Ninth Circuit’s Decision Is Correct
Review is also unwarranted because the Ninth Circuit
correctly held that Petitioners failed to state a violation of
the duty of prudence.
1. ERISA requires plan trustees to act with the “care,
skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like
aims.” 29 U.S.C. § 1104(a)(1)(B). Because there are “a
myriad of circumstances that could violate the prudence
standard,” there are a myriad of ways plaintiffs can plead
factual allegations sufficient for a plausible inference of a
breach of the duty of prudence. App. 11a (cleaned up).
21
Those include facts that, if proven, would establish
directly that a fiduciary used unsound methods in
choosing or retaining investments and thus acted
imprudently. For example, plaintiffs could plead that
fiduciaries selected funds at random or based on tarot
card readings, or—for a more mundane example—
entirely failed to monitor funds for an extended period
despite repeated warnings, see Stegemann v. Gannett Co.,
970 F.3d 465, 476 (4th Cir. 2020).
Alternatively, plaintiffs can plead facts that, if proven,
would establish imprudence indirectly. In contrast to the
hypothetical allegations above directly regarding the
process for selecting or monitoring investments, plaintiffs
can plead circumstantial factual allegations about the
results of that process from which one can “reasonably
infer from what is alleged that the [fiduciaries’] process
was flawed.” App. 11a (cleaned up). For example,
perhaps no facts are available directly regarding the
fiduciaries’ investment-selection process, but that process
yielded a strategy that funneled assets entirely into
lottery ticket purchases. See App. 26a-27a (Berzon, J.,
concurring). That might plausibly suggest that the
fiduciaries were imprudent. More commonly, plaintiffs
point to an allocation of assets into an investment with
relatively high fees or relatively low returns, seeking an
inference that the fiduciaries selected or retained that
investment imprudently.
The critical question in that common scenario,
though, is “relative to what?” If a plaintiff relies “on a
theory that ‘a prudent fiduciary in like circumstances
would have selected a different fund based on the cost or
performance of the selected fund,’ that plaintiff ‘must
provide a sound basis for comparison.’” App. 52a (quoting
Meiners, 898 F.3d at 822). Absent a suitable comparator,
there could be no plausible inference of an imprudent
22
process, because there has been no allegation that the fees
or results were anything other than normal when
measured against comparable investments. In such
circumstances, the “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.” App. 12a (cleaned up).
This requirement is not an atextual “categorical
pleading rule,” as Petitioners contend. Pet. 1. Rather, it
is a shorthand for describing the analysis inherent in
enforcing the pleading standards of Rule 8(a) and Rule
12(b)(6) when a plaintiff wishes to recover for a breach of
the duty of prudence because an investment allegedly
“underperformed” or “cost too much.” This comparative
exercise channels the common-sense notion that when a
plaintiff asks for an inference of imprudence simply based
on the relative performance or cost of a particular
investment fund, the plaintiff must plead both the
existence of a comparator fund and allegations
establishing why it is an appropriate comparator. In this
respect, the requirement of a meaningful benchmark
mirrors other common-sense pleading standards
enforced when a plaintiff seeks an inference of liability.
See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007) (explaining that neither the “naked assertion of
conspiracy” nor “parallel conduct” establish a plausible
inference of conspiracy absent “some further factual
enhancement”).
Pleading a meaningful benchmark is what allows a
plaintiff to plausibly allege that a prudent fiduciary
“acting in a like capacity . . . in the conduct of an
enterprise of a like character and with like aims” would
have acted differently than the defendants. App. 12a
(emphasis in original) (quoting 29 U.S.C. § 1104(a)(1)(B)).
23
Otherwise, the contention that a prudent fiduciary would
have acted differently is conclusory and thus insufficient
to plausibly state a claim.
Evaluating whether a claim relying on indirect
allegations of imprudence properly pleaded any suitable
comparator by no means absolves courts of assessing
imprudence claims on a case-by-case basis. This analysis
is fully consistent with the “careful, context-sensitive
scrutiny” required to assess ERISA claims at the Rule 12
stage and “divide the plausible sheep from the meritless
goats.” Fifth Third Bancorp v. Dudenhoeffer, 573 U.S.
409, 425 (2014).
2.
Applying that standard, the Ninth Circuit
correctly held that Petitioners did not plausibly allege
that Respondents acted imprudently. Forgoing any
direct allegations of imprudence, the amended complaint
sought an inference of imprudence in Respondents’
allocation of assets to hedge funds and private equity
holdings because of the Intel Funds’ allegedly higher
resulting fees and relative resulting underperformance.
But those allegations fell short of stating a plausible
imprudence claim.
Because Petitioners needed to suggest that “a
hypothetical prudent person acting in a like capacity . . .
in the conduct of an enterprise of a like character and with
like aims” would have chosen differently, they needed to
plead the existence of one or more benchmark funds for
comparison and explain why those comparators were a
“sound basis for comparison.” App. 12a (quoting 29
U.S.C. § 1104(a)(1)(B)); accord Matney, 80 F.4th at 1147;
Meiners, 898 F.3d at 822. Here, that meant identifying
benchmarks that shared the Plans’ “clearly disclosed . . .
risk-mitigation objective” yet produced better returns.
App. 13a. Petitioners failed to do so. Petitioners did not
even compare the Funds to their own customized
24
benchmarks, disclosed to plan participants and
beneficiaries as representative performance targets. Id.
at 13a-14a. Instead, Petitioners sought to compare the
Funds only to passively managed “equity-heavy retail
funds,” including “published indices like the S&P 500 and
Morningstar categories of peer-group funds.” Id. at 14a,
55a-56a.
None of the comparators pleaded in the complaint
were meaningful benchmarks because passive indices and
equity-heavy retail funds plainly have “‘different aims,
different risks, and different potential rewards’” than the
expressly disclosed risk-mitigation objective of the Intel
Funds. Id. (quoting Davis, 960 F.3d at 485). As a result,
differences in performance between the proposed
comparators and the Funds permit no plausible inference
that imprudent selection of specific investment was to
blame. Differing returns stemming from the different
high-level strategies is just as plausible. “Comparing
apples and oranges is not a way to show that one is better
or worse than the other.” Davis, 960 F.3d at 485
(rejecting comparison of actively managed funds and
passively managed index funds).
This same reasoning also justified affirming dismissal
of the allegations that the Plans incurred unnecessary
fees compared to those passive, equity-heavy
comparators.
Similar to the poor-investmentperformance allegations, Petitioners needed to plead the
existence of investment options that provided
substantially the same product yet incurred less in fees.
They did not. Petitioners’ comparison to “off-the-shelf
funds that did not seek to mitigate risk to the same degree
as Intel’s funds” was not enough to support an inference
that the Funds’ fees were imprudently excessive. App.
15a. The prices for off-the-rack suits do not permit any
inference about whether a custom-tailored garment is
25
appropriately priced for what is offered. With no
plausible inference of imprudence, the complaint failed to
state a violation of the duty of prudence.
2. The panel also correctly rejected Petitioners’ novel
argument that they did not need to plead a meaningful
benchmark because there were “no meaningful
comparators for the fiduciaries’ decision because Intel’s
approach was unusual, if not unparalleled.” Id. (emphasis
in original). Taken at face value, Petitioners’ real gripe
appears to be that Respondents chose a strategy that was
too conservative, not that they imprudently executed a
permissible strategy. But as the Ninth Circuit noted,
Petitioners’ apparent preference for a different strategy
is not the basis for an imprudence claim. Indeed, “courts
have routinely rejected claims that an ERISA fiduciary
can violate the duty of prudence by seeking to minimize
risk.” Id.; see Pizarro v. Home Depot, Inc., 111 F.4th
1165, 1181 (11th Cir. 2024); Ellis v. Fidelity Mgmt. Tr.
Co., 883 F.3d 1, 10 (1st Cir. 2018); Barchock v. CVS Health
Corp., 886 F.3d 43, 49-50 (1st Cir. 2018). The statutory
text supports these decisions, as “a [hypothetical] prudent
man acting in a like capacity” would undertake his
fiduciary duty “with like aims” in mind. 29 U.S.C.
§ 1104(a)(1)(B).
Even crediting Petitioners’ insistence that they did,
in fact, seek to challenge Respondents’ implementation of
a clearly disclosed risk-mitigation strategy, see App. 16a,
there is no support for the apparent contention that no
prudent fiduciary with comparable aims would have
invested in hedge funds and private equity funds. As the
Ninth Circuit noted, ERISA actually requires that
fiduciaries “diversify[] the investments of the plan so as to
minimize the risk of large losses.”
29 U.S.C.
§ 1104(a)(1)(C); see also 29 C.F.R. § 2550.404a-1(b)(1)(i)(ii) (implementing regulations recognizing that risk can be
26
managed through diversification). 8 And “the prudence of
each investment is not assessed in isolation but, rather, as
the investment relates to the portfolio as a whole.” St.
Vincent, 712 F.3d at 717.
The notion that the alternative investments in the
Intel Funds were too risky runs completely counter to the
charge that the Plans’ conservative strategy cost
Petitioners’ favorable returns. But even putting that
aside, the complaint came nowhere close to marshalling
the allegations necessary to mount a plausible challenge
to the Plans’ relative allocation of capital. At bottom,
Petitioners “had access to detailed information about the
Intel funds—including the identities of the hedge funds
and private equity funds in which they invested”—yet
made “only general arguments about the riskiness and
costliness of hedge funds and private equity funds without
providing factual allegations sufficient to support the
claim that the investments that were actually made were
ill-suited to the Intel funds.” App. 20a. The Ninth Circuit
was correct to affirm dismissal.
III. This Case Does Not Warrant the Court’s Review
1. Even were this Court inclined to consider the
question presented, the peculiar facts here—atypical for
an ERISA claim—make this case an imperfect vehicle to
squarely address the pleading standards for an ERISA
imprudence claim. Rather than challenging Respondents’
imprudent implementation of an investment strategy,
Petitioners in essence challenge Intel’s investment
strategy itself. App. 15a. The Ninth Circuit understood
the same when it noted that Petitioners “conflate[ed] the
Consistent with this diversification directive, by 2010, 92% of large
defined benefit plans invested in private equity, and 60% invested in
hedge funds, with allocations as high as 30% for private equity and
33% for hedge funds. See 3-ER-430, 434.
8
27
risk-mitigation objective of the Intel Funds with the
allocation decisions made to implement that objective.”
App. 15a.
When Congress enacted ERISA, “the crucible of
congressional concern was misuse and mismanagement of
plan assets by plan administrators”—i.e., “ERISA was
designed to prevent these abuses in the future.”
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134,
140 n.8 (1985). By codifying a fiduciary’s duty of prudence
as one imposing a “continuing duty to monitor trust
investments and remove imprudent ones,” Congress
sought to ensure that fiduciaries were not asleep at the
wheel when managing participants’ savings. Tibble, 575
U.S. at 529. ERISA was not, however, intended to dictate
how fiduciaries should develop their strategy, nor
mandate that they seek maximum returns (which, of
course, comes with higher risk). See Gobeille v. Liberty
Mut. Ins. Co., 577 U.S. 312, 320-21 (2016).
Thus, in more typical ERISA imprudence claims, the
plaintiffs sue fiduciaries for imprudently fulfilling their
duties to keep costs low while selecting favorable
investments and removing unfavorable ones. E.g.,
Matousek, 51 F.4th at 278. The claims typically concern
careless management or implementation. Here, however,
Petitioners try to shoehorn their dissatisfaction with the
Intel Funds’ conservative strategy into an imprudence
claim by comparing the Intel Funds to equity-heavy retail
funds that pursued a fundamentally different objective of
maximizing returns. App. 14a. Indeed, when Petitioners
argue that there were no comparators because Intel’s
approach “was unusual, if not unparalleled,” they
inadvertently acknowledge that Intel’s approach was
fundamentally different than an equity-heavy, returnmaximation approach. App. 15a. As the Ninth Circuit
28
observed, “the complaint suggests that the fiduciaries’
choices had their intended effects,” with hedge funds
underperforming the global stock market in “up” months
but overperforming in “down” months. Id. Petitioners
may prefer, post facto, to have been invested more heavily
in stocks during a lengthy bull market, but that hindsightdriven preference does not entitle them to an imprudence
claim under ERISA. See Pizarro, 111 F.4th at 1180
(explaining that a “snapshot [of a fund’s subpar
performance] does not mean it is objectively imprudent to
adopt a more conservative strategy—the tables turn
when the market is down”). And the well-settled principle
that an ERISA fiduciary cannot violate the duty of
prudence by seeking to minimize risk does not warrant
further review. See, e.g., Ellis, 883 F.3d at 10 (rejecting
argument “that a plan fiduciary’s choice of benchmark . . .
can be imprudent by virtue of being too conservative”).
2. As explained above, this is also a paradigmatic case
where further percolation is warranted. Despite the
prevalence of ERISA suits, only a handful of circuits have
yet weighed in on when a plaintiff must plead a
meaningful benchmark to support her imprudence claims.
The case supposedly creating the (phantom) split—
Parker-Hannifin—is barely a year old, and no
subsequent circuit courts have analyzed the decision and
addressed whether or not a split does, in fact, exist.
(Indeed, despite publication six months later, and
references to the case in multiple Rule 28(j) letters, the
Ninth Circuit declined to discuss or even cite ParkerHannifin.) There is good reason to expect that any
tension in the circuits will dissipate in due course.
Similarly, there has not yet been substantial activity in the
district courts on the meaningful-benchmark issue in
recent months. Before taking up this issue, this Court
should wait to see if any meaningful differences actually
29
arise in the way that courts are applying the pleading
standard for indirect allegations of imprudence.
IV. Were the Court Inclined To Address the Question
Presented, It Should Grant this Petition in Addition to
Parker-Hannifin
For the reasons explained above, there is no
compelling reason to grant review in either this case or
Parker-Hannifin. Both decisions apply well-established
law, break no new legal ground, and reach the right result.
At most, the petitioners in each case ask for factbound
error correction of decisions that are not erroneous. But
if the Court decides to review the question of whether
ERISA plaintiffs must plead a meaningful benchmark to
state an imprudent-investment claim based on
underperformance, this case presents a more suitable
vehicle to address the issue than Parker-Hannifin.
1. To begin, Parker-Hannifin’s interlocutory posture
renders that case a suboptimal vehicle as a general
matter. In Parker-Hannifin, the Sixth Circuit reversed
the dismissal of the respondents’ complaint and remanded
for further proceedings. 122 F.4th at 207. Although this
Court can review cases in an interlocutory posture, see 28
U.S.C. § 1254, it “generally await[s] final judgment in the
lower courts before exercising . . . certiorari jurisdiction.”
Va. Mil. Inst. v. United States, 508 U.S. 946, 946 (1993);
see Robert L. Stern, Eugene Gressman & Stephen M.
Shapiro, Supreme Court Practice § 4.18 (11th ed. 2019)
(explaining that in the absence of an “unusual factor,” the
Court “generally” denies certiorari). The Ninth Circuit’s
decision in this case, on the other hand, has terminated
the litigation.
2. In addition, resolving the question presented in
Parker-Hannifin would not alone determine the outcome
30
of that case. The plaintiffs there pleaded three claims,
only one of which—a claim that the fiduciaries
imprudently
retained
underperforming
funds—
implicated the possible need for a meaningful benchmark.
See Parker-Hannifin, 122 F.4th at 213-20. The Sixth
Circuit also reversed dismissal of an imprudence claim
based on allegations that the fiduciaries selected fund
share classes that had higher fees than other share classes
within the same funds. Id. at 220-22. That claim
automatically provided a meaningful comparison—
without any need to point to a separate fund as a
benchmark—because the share classes were within the
same fund and thus necessarily were pursuing the same
objectives. In other words, a valid comparator was not
required to demonstrate that the share-class allegations
were comparing apples to apples. Compare id. at 220-22
(no mention of benchmarks in relevant portion of majority
opinion), with id. at 235-39 (Murphy, J., dissenting) (same
for relevant portion of dissenting opinion).
The
petitioners in Parker-Hannifin “do not seek review of the
Sixth Circuit’s ruling on [the] share-class claim.” Pet for.
Cert. at 7 n.1, Parker-Hannifin Corp. v. Johnson (No. 241030). Therefore, both that claim and a derivative failureto-monitor claim will proceed to discovery regardless of
whether the Court grants or denies certiorari in that case.
3. An independent deficiency with the petition in
Parker-Hannifin stems from Justice Alito’s apparent
recusal in that case. See Entry dated June 30, 2025, Dkt.
No. 24-1030. By reducing the Court to an even eight
members, recusal of a Justice poses significant risks to
the Court’s ability to resolve the issues at hand. See
Cheney v. U.S. Dist. Ct. for D.C., 541 U.S. 913, 915 (2004)
(“The Court proceeds with eight Justices, raising the
possibility that, by reason of a tie vote, it will find itself
unable to resolve the significant legal issue presented by
31
the case.”). The Court can sidestep the recusal issue by
choosing to grant review in this case in addition to ParkerHannifin. Cf. Loper Bright Enters. v. Raimondo, 603
U.S. 369 (2024); Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
CONCLUSION
For the foregoing reasons, the Court should deny the
petition.
Respectfully submitted,
MYRON D. RUMELD
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
(212) 969-3000
LISA S. BLATT
Counsel of Record
DAVID S. KURTZER-ELLENBOGEN
CHARLES L. MCCLOUD
KEES D. THOMPSON
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
lblatt@wc.com
Counsel for Respondents
DECEMBER 9, 2025
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