Amicus Curiae Brief — Winston R. Anderson, et al., Petitioners v. Intel Corporation Investment Policy Committee, et al.

Supreme Court briefApr 27, 2026

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No. 25-498

In The Supreme Court of the United States

_______________________

WINSTON R. ANDERSON, ET AL.,

Petitioners,

INTEL CORPORATION INVESTMENT POLICY

COMMITTEE, ET AL.,

Respondents.

__________________________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________________________

BRIEF OF AMICI CURIAE AARP, AARP

FOUNDATION, PENSION RIGHTS CENTER

AND BETTER MARKETS, INC. IN SUPPORT

OF PETITIONERS

___________________________________

LOUIS LOPEZ*

*Counsel of Record

WILLIAM ALVARADO RIVERA

STEFAN SHAIBANI

DEAN GRAYBILL

AARP FOUNDATION

601 E Street, NW

Washington, DC 20049

(202) 322-4180

llopez@aarp.org

April 27, 2026

DENNIS M. KELLEHER

DOMINICK V. FREDA

BETTER MARKETS, INC.

2000 Pennsylvania Avenue,

NW, Suite 408

Washington, DC 20006

THERESA S. GEE

NORMAN P. STEIN

PENSION RIGHTS CENTER

1050 30th Street, NW

Washington, DC 20007

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

STATEMENTS OF INTEREST ................................. 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 4

II.

The Ninth Circuit’s Strained Definition

of “Meaningful Benchmark” Leads to an

Unworkable Pleading Rule for ERISA

Imprudence Claims. ......................................... 4

The Ninth Circuit’s Rigid

Standard Is Not Supported by

the Federal Rules of Civil

Procedure or ERISA. ............................. 5

The Ninth Circuit’s Approach

Requires Plaintiffs to Plead

Information Solely in Defendants’

Possession and Guts ERISA’s

Protections When Plan

Participants Need It Most. ................... 7

The Ninth Circuit’s Unfair and

Unrealistic Pleading Rule for ERISA

Imprudence Claims Threatens the

Financial Security of Older Adults. .............. 11

Workers Bear All the Financial

Risk of Fiduciaries’ Choice of

Complex Investment Options and

Lack the Training and Expertise

to Independently Evaluate Them. ...... 11

Fiduciaries’ Failure to Disclose

the Material Risks of Investment

Options Sabotages Plan

Participants’ Efforts at Self-Help. ...... 15

Even Modest Losses Caused by

Fiduciary Imprudence Can Have

Outsized Impact on the Financial

Security of Retirees in Today’s

Economy. ............................................. 19

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Cases

Page

Anderson v. Intel Corp. Inv. Pol’y Comm.,

137 F.4th 1015 (9th Cir. 2025) .. 4, 6, 10, 17, 18

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ...................................... 5, 7

Barker v. Am. Mobil Power Corp.,

64 F.3d 1397 (9th Cir. 1995),

as amended (Nov. 15, 1995)........................... 15

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007). ..................................... 5, 7

Bins v. Exxon Co. U.S.A.,

220 F.3d 1042 (9th Cir. 2000)........................ 15

Braden v. Wal-Mart Stores, Inc.,

588 F.3d 585 (8th Cir. 2009)........................ 8, 9

Cunningham v. Cornell Univ.,

604 U.S. 693 (2025) ...................................... 2, 9

DiFelice v. U.S. Airways, Inc.,

497 F.3d 410 (4th Cir. 2007). ......................... 18

Fifth Third Bancorp v. Dudenhoeffer,

573 U.S. 409 (2014) .......................................... 7

Hughes v. Nw. Univ.,

595 U.S. 170 (2022) ...................... 2, 3, 7, 12, 18

Hunger v Ameritech,

779 F. Supp. 419 (N.D. Ill. 1991)................... 19

Marx v. Comput. Sci. Corp.,

507 F.2d 485 (9th Cir. 1974). ......................... 17

Peralta v. Hisp. Bus., Inc.,

419 F.3d 1064 (9th Cir. 2005)........................ 15

Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41 (1987) .......................................... 19

Reetz v. Aon Hewitt Inv. Consulting, Inc.,

74 F.4th 171 (4th Cir. 2023) ............................ 6

Smith v. CommonSpirit Health,

37 F.4th 1160 (6th Cir. 2022) .......................... 6

Tibble v. Edison Int’l,

575 U.S. 523 (2015) .................................. 12, 18

United States v. Smith,

155 F.3d 1051 (9th Cir. 1998)........................ 17

Varity Corp. v. Howe,

516 U.S. 489 (1996) ........................................ 10

Washington v. Bert Bell/Pete Rozell NFL

Retirement Plan,

504 F.3d 818 (9th Cir. 2007).......................... 15

Statutes and Regulations

Employee Retirement Income Security Act of

1974 (ERISA), 29 U.S.C. § 1001, et seq. ................. 1, 2

29 U.S.C. § 1001(b) ........................................ 19

29 U.S.C. § 1002(b) ........................................ 10

29 U.S.C. § 1104(a).......................................... 6

29 U.S.C. § 1104(a)(1)(B) ................................. 6

29 U.S.C. § 1104(a)(1)(C) ................................. 6

29 U.S.C. § 1104(a)(1)(D) ................................. 6

Private Securities Litigation Reform Act,

15 U.S.C. § 78u-4(b)(2)..................................... 7

Rules and Regulations for Fiduciary Responsibility,

29 C.F.R. Part 2550

29 C.F.R. § 2550.404a-1 ............................. 6, 18

29 C.F.R. § 2550.404a-1(b)(i) ......................... 18

29 C.F.R. § 2550.404a-1(b)(ii) ........................ 18

29 C.F.R. § 2550.404a-1(b)(iii)....................... 18

Rules

Fed. R. Civ. P. 8(a)(2) ................................................. 5

Fed. R. Civ. P. 9(b) ...................................................... 7

Other Authorities

2022 Survey of Consumer Finances, Bd. of

Governors of the Federal Reserve Bd.

(2023), https://www.federalreserve.gov/

econres/scfindex.htm...................................... 25

4 Generations Are Persevering Against

Headwinds and Uncertainties to

Prepare for Retirement, Transamerica

Ctr. for Ret. Studies (June 2025),

https://www.transamericainstitute.

org/research/publications/details/fourgenerations-persevering-againstheadwinds-uncertainties-prepare-forretirement ............................................... 20, 22

A Look at 401(k) Plan Fees, U.S. Dep’t of Lab.,

https://www.dol.gov/node/63354

(last visited Apr. 24, 2026) ............................ 25

Addressing the Nation’s Retirement Crisis: The

80%, Nat’l Council on Aging (Oct. 7, 2025),

https://www.ncoa.org/article/

addressing-the-nations-retirementcrisis-the-80-percent-financiallystruggling/ ...................................................... 21

Ian Ayres & Quinn Curtis, Beyond Diversification:

The Pervasive Problem of Excessive Fees

and “Dominated Funds” in 401(k) Plans,

124 Yale L.J. 1476 (Mar. 2015) ..................... 20

Baby Boomer Retirement Income

Expectations and Opportunities,

Am. Equity (Aug. 13, 2018),

https://www.american-equity.com/

insights/baby-boomer-retirementincome-expectations-andopportunities ...................................... 21, 22, 24

vii

Boomers Face Tougher Retirement Than

Their Parents Did, AARP (Oct. 24, 2018),

https://www.aarp.org/money/retirement/

boomers-struggle-home-values/..................... 22

Kathi Brown, AARP Financial Security

Trends Survey, January 2025

Annotated Questionnaire, AARP,

(Jan. 2025), https://www.aarp.org/

content/dam/aarp/ research/topics/

work-finances-retirement/ financialsecurity-retirement/financial-securitytrends-january-2025-annotatedquestionnaire.doi.10. 26419-2fres.00525.

049.pdf ............................................................ 21

Gary Bruebaker, et al., Principles and Best

Practice for Hedge Fund Investors,

U.S. Commodity Futures Trading

Comm’n (Jan. 15, 2009), https://

www.cftc.gov/sites/default/files/

idc/groups/public/@swaps/documents/

file/principles practices.pdf............................ 16

Lona Choi-Allum, 401(k) Participants’

Awareness and Understanding of

Fees, AARP Rsch. (Mar. 1, 2011),

https://www.aarp.org/pri/ topics/

work-finances-retirement/ financialsecurity-retirement/401k-feesawareness-understanding/ ............................ 13

viii

Robert Clark, et al., Financial Knowledge and

401(k) Investment Performance: A Case

Study (June 22, 2015), https://gflec.org/

wp-content/uploads/2015/12/FinancialKnowledge-and-401k-InvestmentPerformance-A-Case-Study-.pdf .................... 13

Khadijah Edwards, Roughly Half of Americans

are Knowledgeable About Personal

Finances, Pew Rsch. Ctr. (Dec. 9, 2024),

https://www.pewresearch.org/shortreads/2024/12/09/ roughly-half-ofamericans-are-knowledgeable-aboutpersonal-finances/ .......................................... 13

Richard Fry, Baby Boomers are Staying in

the Labor Force at Rates not Seen in

Generations for People Their age, Pew

Rsch. Ctr. (July 24, 2019), https://www.

pewresearch.org/short-reads/2019/07/24/

baby-boomers-us-labor-force/ ........................ 22

Maria G. Hoffman, et al., New Data Reveal

Inequality in Retirement Account

Ownership, U.S. Census Bureau

(Aug. 31, 2022), https://www.census.

gov/library/ stories/2022/08/who-hasretirement-accounts.html .............................. 20

Hugh Hoikwang Kim, et al., Time is Money:

Rational Life Cycle Inertia and the

Delegation of Investment Management,

HHS Pub. Access (Aug. 1, 2017),

https://pmc.ncbi.nlm.nih.gov/articles/

PMC5363991/ pdf/nihms779516.pdf ............. 13

Andy Markowitz, Are the Last Boomers Ready

for Retirement?, AARP (Apr. 19, 2024),

https://www.aarp.org/money/retirement/

peak-boomer-readiness/. .......................... 20, 21

Elizabeth A. Myers & John J. Topleski,

A Visual Depiction of the Shift from

Defined Benefit (DB) to Defined

Contribution (DC) Pension Plans in the

Private Sector (Mar. 25, 2026), https://

www.congress.gov/crs-product/

IF12007 .......................................................... 12

Our Impact Through the Years, Better

Markets, https:// bettermarkets.org/

timeline/ (last visited Apr. 24, 2026) ............... 3

Point of View on Disability in the Workplace,

EBRI (May 8, 2025), https://www.ebri.

org/docs/default-source/point-of-view/

pov_5-deidisability-8may25.pdf?sfvrsn=

d3d4042f_1 ..................................................... 23

Restatement (Third) of Trusts § 77 cmt. a

(2007) ................................................................ 6

Retirement Topics – Disability, IRS (Feb. 26, 2026),

https://www.irs.gov/retirement-plans/planparticipant-employee/retirement-topicsdisability#:~:text= A%20plan%20participant

%20may%20receive,still%20be%

20reported%20 as%20income ........................ 23

Rolling in it: Why Investors Should Kick up a

Fuss About Hedge-Fund Fees,

The Economist (Nov. 16, 2006),

https://www.economist.com/finance-andeconomics/2006/11/16/rolling-in-it................. 16

John Scott, Millions of Americans Are Falling

Behind on Their Retirement Goals,

Pew Charitable Trs. (Oct. 24, 2024),

https:// www.pew.org/en/about/news-room/

opinion/2024/10/24/millions-of-americans

-are-falling-behind-on-their-retirementgoals................................................................ 24

Robert Shapiro & Luke Stuttgen, The Peak

Boomers Impact Study (Apr. 2024),

https://www.limraconsumer.com/wpcontent/uploads/2024/04/Peak-BoomersEcon-Impact-Study-EXEC-SUMM-ALIRII-Shapiro-Stuttgen-EMBARGOEDApr-18-2024-041624.pdf .......................... 23, 24

Natalya Shnitser, Retirement Plan Reforms

in the Absence of a Retirement Policy,

in THE CAMBRIDGE HANDBOOK OF

INVESTOR PROTECTION

(Arthur B. Laby, 2d ed. 2022)........................ 12

Target Date Funds – Investor Bulletin, U.S.

Sec. & Exch. Comm’n (Mar. 25, 2025),

https://www.investor.gov/introductioninvesting/general-resources/news-alerts/

alerts-bulletins/investor-bulletins/targetdate-funds-investor-bulletin .......................... 14

Jane Tavares, et al., Low-Income Older Adults

Die 9 Years Earlier Than Those With

Greatest Wealth, Nat’l Council on Aging

(2025), https://assets.ncoa.org/ffacfe7d10b6-0083-2632-604077fd4eca/df44501b7c8e-43ac-8e12-2373288f71d4/2025_80_

Percent_Report.pdf ........................................ 24

The Social Security Challenge, Am. Acad. of

Actuaries, https://actuary.org/social

security/ (last visited Apr. 6, 2026) ............... 24

U.S. Gov’t Accountability Off., GAO-08-692,

Guidance Needed to Better Inform

Plans of the Challenges and Risks of

Investing in Hedge Funds (Aug. 2008),

https://www.gao.gov/assets/gao-08-692.

pdf ................................................................... 16

STATEMENTS OF INTEREST 1

AARP is the nation’s largest nonprofit,

nonpartisan organization dedicated to empowering

Americans 50 and older to choose how they live as they

age. With a nationwide presence, AARP strengthens

communities and advocates for what matters most to

the more than 100 million Americans 50-plus and

their families: health and financial security, and

personal fulfillment. AARP’s charitable affiliate,

AARP Foundation, works for and with vulnerable

people over 50 to end senior poverty and reduce

financial hardship by building economic opportunity.

AARP and AARP Foundation seek to increase

the financial security of older individuals’ retirement,

pension, and other employee benefit plans through

participation as amicus curiae in federal and state

courts. One of amici’s main objectives is to ensure that

plan participants receive all the benefits they are

entitled to in retirement. To achieve this goal, amici

work to ensure that fiduciaries manage and

administer plans loyally and prudently in accordance

with the requirements outlined in the Employee

Retirement Income Security Act of 1974 (ERISA), 29

U.S.C. § 1001, et seq.

AARP and AARP Foundation have previously

filed amicus briefs seeking to ensure that courts apply

Pursuant to Supreme Court Rule 37, we submit that no

counsel for any party authored the brief in whole or in part. In

addition, no person or entity, other than amici, their members,

and their counsel, has made any monetary contribution to the

preparation or submission of this brief.

appropriate pleading standards in suits brought by

plan participants alleging breaches of fiduciary duties

under ERISA. See, e.g., Hughes v. Nw. Univ., 595 U.S.

170 (2022); Cunningham v. Cornell Univ., 604 U.S.

693 (2025). Preserving plaintiffs’ access to the courts

is critical to ensuring that fiduciaries manage and

administer plans loyally and prudently in accordance

with the requirements of ERISA.

The Pension Rights Center is a national

nonprofit, nonpartisan consumer organization

founded in 1976 to protect and promote the retirement

security of American workers, retirees, and their

families. The Center works to expand our nation’s

retirement programs and make them fairer, more

adequate and secure; to help individuals obtain

retirement benefits they have been improperly denied;

and to preserve pension protections conferred by

Congress in ERISA, the landmark private pension

law.

Better Markets, Inc. is a nonprofit, nonpartisan

organization that promotes the public interest in the

financial markets through comment letters, litigation,

independent research, and public advocacy. Better

Markets fights for reforms that stabilize our financial

system; increase economic prosperity for all

Americans; and protect investors from fraud, abuse,

and conflicts of interest. Better Markets has fought

long and hard to protect Americans’ retirement

savings through amicus briefs and comment letters to

the Department of Labor (DOL) and the U.S.

Securities and Exchange Commission (SEC),

advocating for strong fiduciary standards to prevent

conflicted or imprudent financial advisers from

siphoning away billions of dollars a year from

Americans’ retirement accounts. And in this Court,

Better Markets has sought to protect retirement

savers by supporting common sense pleading

standards in plan participant suits seeking redress for

violations of fiduciary duties under ERISA. See

Hughes, 595 U.S. 170; see generally Our Impact

Through the Years, Better Markets, https://

bettermarkets.org/timeline/ (last visited Apr. 24,

2026) (archiving all comment letters and briefs). The

issues presented in this case similarly involve the

ability of millions of Americans to protect their

retirement savings through private actions under

ERISA.

SUMMARY OF ARGUMENT

The Ninth Circuit in this case held that

plaintiffs pleading 401(k) plan underperformance as

part of an ERISA imprudence claim must recite a

“meaningful benchmark.” Amici recognize that

plaintiffs, when alleging underperformance, often will

be required to cite some relevant comparison or

benchmark to meet plausibility pleading standards.

Here, however, the Ninth Circuit defines that

requirement as having to plead a near-identical

benchmark in circumstances where no plaintiff with a

meritorious case could succeed. The court’s categorical

rule not only violates settled pleading standards but

also sets a precedent perversely giving special

immunity to fiduciaries who make radical “outlier”

investment choices for their 401(k) plans.

The Ninth Circuit’s unworkable approach is

especially dangerous given workers’ inability to

protect themselves from such imprudent investment

choices. While a majority of workers today have 401(k)

plans to help secure their retirement, these plans

require those individuals to bear all the market risk

even though nearly all lack the financial training to

review the fiduciary’s menu of investment options.

This problem is magnified when, as alleged here, the

fiduciary also fails to disclose the material risks

associated with the investments, sabotaging plan

participants’ efforts at self-help. Even modest 401(k)

investment shortfalls caused by fiduciary imprudence

can have outsized impact on the financial security of

retirees in today’s economy, when people are having to

work longer to save more to cover basic living costs.

ARGUMENT

The Ninth Circuit’s Strained Definition of

“Meaningful Benchmark” Leads to an

Unworkable Pleading Rule for ERISA

Imprudence Claims.

The Ninth Circuit held that plaintiffs who plead

401(k) fund underperformance as part of an ERISA

imprudence claim must articulate a “meaningful

benchmark.” Anderson v. Intel Corp. Inv. Pol’y Comm.,

137 F.4th 1015, 1022 (9th Cir. 2025). In the court’s

view, a “meaningful benchmark” is a nearly identical

comparator sharing the same “aims, … risks, and …

potential rewards” of the underlying investment. Id.

at 1023. According to the court, this definition not only

excludes the benchmarks identified by the defendant’s

own plan fiduciaries as appropriate comparators but

also ignores the plaintiff’s non-conclusory allegations

that the investment decisions at issue were profoundly

out of step with industry norms. Id. Accordingly, the

Court should reject the Ninth Circuit’s unworkable

approach because it both violates settled pleading

standards and sets a dangerous precedent

immunizing fiduciaries who make radical “outlier”

investment choices for their 401(k) plans.

The Ninth Circuit’s Rigid Standard

Is Not Supported by the Federal

Rules of Civil Procedure or ERISA.

The Federal Rules of Civil Procedure are

designed to be simple and direct, emphasizing noticepleading over technical formalities. As such, Rule 8

requires that a pleading contain “a short and plain

statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). When

analyzing pleadings under Rule 8, the Supreme Court

has long endorsed the plausibility standard. “To

survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). “A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” Id. Courts are generally required

to accept as true a plaintiff’s plausible allegations and

need “not impose a probability requirement at the

pleading stage.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007). When alleging an ERISA imprudence

claim predicated on fund underperformance, plaintiffs

often will be required to allege some relevant

comparison or benchmark to meet the plausibility

pleading standard. But nothing in the Federal Rules

requires pleading the Ninth Circuit’s strict definition

of a “meaningful benchmark” to defeat a motion to

dismiss.

ERISA, too, does not require pleading the

unbending

“meaningful

benchmark”

standard

mandated by the Ninth Circuit. Section 1104(a)(1)(B)

directs fiduciaries to discharge their duties “with the

care, skill, prudence, and diligence under the

circumstances … 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). 2 Notably,

section 1104(a) does not reference a “meaningful

benchmark” as a pleading requirement. Id; See

Anderson, 137 F.4th at 1028 (Berzon, J., concurring).

Similarly, DOL regulations do not list a “meaningful

benchmark,” much less the Ninth Circuit’s strict

interpretation of it, as an element of an ERISA

imprudence claim. 3 See 29 C.F.R. § 2550.404a-1

(fiduciaries shall evaluate “the risk of loss and the

opportunity for gain” for the investment and

Section 1104(a)(1)(C) requires fiduciaries to diversify

investments. Section 1104(a)(1)(D) indicates that the duty of

prudence trumps the instructions of plan documents.

Instead, an ERISA imprudence claim is focused on

challenging a fiduciary’s real-time decision-making process in

selecting, retaining, and monitoring investments. See Reetz v.

Aon Hewitt Inv. Consulting, Inc., 74 F.4th 171, 182 (4th Cir.

2023); Smith v. CommonSpirit Health, 37 F.4th 1160, 1166 (6th

Cir. 2022); Restatement (Third) of Trusts § 77 cmt. a (2007).

“reasonably available alternatives with similar risks”)

(emphasis added).

Unlike other claims that require pleading with

particularity, 4 ERISA does not contain a heightened

pleading standard for imprudence or other claims.

Instead, the statute requires courts to engage in a

“careful, context-sensitive scrutiny of a complaint’s

allegations” under the plausibility standard set forth

in Iqbal and Twombly. Fifth Third Bancorp v.

Dudenhoeffer, 573 U.S. 409, 425 (2014). The Ninth

Circuit’s restrictive definition of a “meaningful

benchmark” is contrary to the express language of

ERISA, its regulations, and this Court’s plausibility

standard for pleadings. “Such a categorical rule is

inconsistent with the context-specific inquiry that

ERISA requires.” Hughes, 595 U.S. at 173.

The Ninth Circuit’s Approach

Requires

Plaintiffs

Plead

Information Solely in Defendants’

Possession

and

Guts

ERISA’s

Protections When Plan Participants

Need It Most.

Amici take no position on whether a fiduciary

may prudently allocate a portion of 401(k) plan assets

to private equity and hedge funds. However, amici

submit that here, Anderson has alleged with more

than sufficient detail that Intel’s fiduciaries—despite

notice of the high risks—breached their duty of

See, e.g., Fed. R. Civ. P. 9(b) (particularity standard for fraud

allegations); Private Securities Litigation Reform Act, 15 U.S.C.

§ 78u-4(b)(2) (particularity standard for scienter allegations).

prudence to plan participants by allocating massive,

unprecedented amounts of those investments in the

401(k) plan and then failing to reduce those

allocations despite their alarming underperformance

for over a decade.

At the pleading stage, “it is sufficient for a

plaintiff to plead facts indirectly showing unlawful

behavior,” in part because plan participants

“generally lack the inside information necessary to

make out their claims in detail unless and until

discovery commences.” Braden v. Wal-Mart Stores,

Inc., 588 F.3d 585, 595, 598 (8th Cir. 2009). The

detailed allegations of imprudence in Anderson’s

amended complaint easily meet the pleading

standard. Notably, Anderson alleges that: (1) Intel

massively increased the allocation of plan assets (2350%) in hedge funds, private equity, and other

alternative investments in the 2009-11 period despite

numerous public warnings from 2006 onward about

the risks of such heavy allocations; (2) an analysis of

50 target date funds in 401(k) plans during this same

time period indicated allocations of about 0-3%, but

not more than 7%, in private equity and hedge funds;

(3) Intel’s funds subsequently underperformed

relevant benchmarks by hundreds of millions of

dollars; (4) Intel’s fiduciaries failed to monitor and

adjust the foregoing allocations over numerous years;

(5) Intel’s funds imposed fees 100-400% higher than

those charged in comparable target date and

diversified funds; (6) Intel’s fiduciaries had a conflict

of interest when they chose private equity funds

investing in companies in which Intel’s venture capital

arm had also invested; and (7) Intel’s disclosures

regarding the plans’ investments in private equity and

hedge funds contained material misrepresentations.

See JA150-52, 184-200, 211-18. Anderson further

identified multiple comparators, informed by expert

opinion, as relevant benchmarks with similar

characteristics to Intel’s funds and included the very

same funds against which Intel’s fiduciaries compared

their plans. See JA82-89, 94-99.

Requiring more particularized evidence than

what Anderson produced at the pleading stage—

before discovery—would demand that plaintiffs meet

an unattainable standard: they would need to plead

information contained in the fiduciary committee

meeting minutes such as the processes and methods

that fiduciaries used to arrive at the challenged

investment decisions. However, this information is

typically “kept secret” from participants and not

included in annual plan disclosures. Braden, 588 F.3d

at 602. “It would be perverse to require plaintiffs

bringing … [such claims] to plead facts that remain in

the sole control of the parties who stand accused of

wrongdoing.” Id. This Court has held that “it would

make little sense to put the onus on plaintiffs to plead

… facts one would expect to be in the fiduciary’s

possession.” Cunningham, 604 U.S. at 705. The same

reasoning applies here.

The

“meaningful

benchmark”

pleading

requirement imposed by the Ninth Circuit requires

plaintiffs relying on circumstantial evidence to point

to a near identical comparator fund that performed

better. But this precondition has the paradoxical effect

of protecting the most extreme and novel investments

for which there is no comparator. For instance, if

fiduciaries invested 25% of plan assets in lottery

tickets, there would be no comparator fund for

participants to bring an ERISA imprudence claim.

Here, the Ninth Circuit faulted Anderson for not

identifying a near identical benchmark sharing the

same “aims, … risks, and … potential rewards” of

Intel’s plans even though no other target date or

diversified fund had allocated such massive portions

of plan assets in hedge funds and private equity.

Anderson, 137 F.4th at 1023. By rejecting the Ninth

Circuit’s categorical pleading rule, this Court will

remain faithful to ERISA’s remedial purpose “to

protect the interests of participants and beneficiaries,”

especially when fiduciaries invest in ways that are so

imprudent and far out-of-step with industry norms

that no identical benchmark exists. Varity Corp. v.

Howe, 516 U.S. 489, 513 (1996) (quoting 29 U.S.C.

§ 1002(b)) (cleaned up).

II.

The Ninth Circuit’s Unfair and Unrealistic

Pleading Rule for ERISA Imprudence

Claims Threatens the Financial Security

of Older Adults.

Workers Bear All the Financial Risk

of Fiduciaries’ Choice of Complex

Investment Options and Lack the

Training

and

Expertise

Independently Evaluate Them.

For decades, traditional defined benefit (DB)

pension plans dominated the retirement landscape.

Under these plans, workers are promised a

guaranteed monthly income for life if they meet

certain vesting requirements. Plan administrators

make all the investment decisions, and the employer

owes workers fixed benefits regardless of market

downturns. As an added financial security measure,

the Pension Benefit Guaranty Corporation insures

benefits for all ERISA-covered DB plans.

Today, defined contribution (DC) plans—most

often employer-sponsored 401(k)s—are the treasured

means for workers to invest in their economic future.

Workers choose from a menu of investment options;

employers often match investments up to a fixed

amount set by the Internal Revenue Service (IRS); and

retired workers can either retain their 401(k)

investments as-is or complete “roll overs” to other

plans of their own choosing. Some workers who are

financially educated may even welcome the chance to

have greater agency in choosing investments tuned to

their specific financial circumstances. 5 However, a key

downside is that, now, workers bear all the market

risk of their choices. This societal shift in retirement

security is of breathtaking proportion. In 1975, private

sector DB plans had a total of 27.2 million active

participants, and private sector DC plans—like

401(k)s—had 11.2 million active participants. By

2023, private sector DB plans had only 11.1 million

active participants, and private sector DC plans had

96.4 million active participants. 6

To be sure, ERISA requires 401(k) plan

administrators—as fiduciaries—to choose investment

options wisely and to monitor their success over time.

See, e.g., Hughes, 595 U.S. at 175-76 (all 401(k)

investment options must be prudent); Tibble v. Edison

Int’l, 575 U.S. 523, 530 (2015) (duty to monitor 401(k)

investment options and remove imprudent ones).

However, the imposition of inappropriate, harsh

pleading standards, as here, impedes plan

participants’ access to the courts to enforce those

precepts, reducing their real-world impact.

Nor can workers, realistically, detect

imprudent investment decisions. Most Americans lack

the financial training to do so. For example, 59% of

adults express confidence they could create a monthly

Natalya Shnitser, Retirement Plan Reforms in the Absence of

a Retirement Policy, in THE CAMBRIDGE HANDBOOK OF INVESTOR

PROTECTION 120-21 (Arthur B. Laby, 2d ed. 2022).

Elizabeth A. Myers & John J. Topleski, A Visual Depiction of

the Shift from Defined Benefit (DB) to Defined Contribution (DC)

Pension Plans in the Private Sector (Mar. 25, 2026), https://www.

congress.gov/crs-product/IF12007.

financial budget, but only 27% have confidence they

could create an investment plan. 7 One chief problem

is lay persons’ lack of education in understanding

investment risk, such as asset diversification. Only

48% of adults understand that buying a mutual fund

with multiple stocks poses less risk than buying a

single company’s stock. 8 AARP reports that older

adults also struggle with ill-composed financial

disclosures of investment fees. In one study, 71% of

respondents inaccurately believed that their 401(k)

plans charged no fees. 9

Studies further show that many 401(k) plan

participants have no choice but to defer to fiduciaries’

judgment due to lack of time. For example, a principal

problem for workers is the “opportunity cost of

financial management” when time “could otherwise be

used for job-related human capital accumulation.” 10

Khadijah Edwards, Roughly Half of Americans are

Knowledgeable About Personal Finances, Pew Rsch. Ctr. (Dec. 9,

2024), https:// www.pewresearch.org/short-reads/2024/12/09/

roughly-half-of-americans-are-knowledgeable-about-personalfinances/.

Robert Clark, et al., Financial Knowledge and 401(k)

Investment Performance: A Case Study (June 22, 2015),

https://gflec.org/wp-content/uploads/2015/12/FinancialKnowledge-and-401k-Investment-Performance-A-Case-Study.pdf.

Lona Choi-Allum, 401(k) Participants’ Awareness and

Understanding of Fees, AARP Rsch. (Mar. 1, 2011), https://

www.aarp.org/pri/topics/work-finances-retirement/financialsecurity-retirement/401k-fees-awareness-understanding/.

Hugh Hoikwang Kim, et al., Time is Money: Rational Life

Cycle Inertia and the Delegation of Investment Management,

HHS Pub. Access (Aug. 1, 2017), https://pmc.ncbi.nlm.nih.gov/

articles/PMC5363991/pdf/nihms779516.pdf.

Given that many Americans are still working into

their late sixties and seventies and having to monitor

their investment choices, this principle applies to

older adults as well as younger workers just starting

their careers.

Finally, the sheer complexity of today’s

investments stands in the way. Target Date Funds

(TDFs) are a case in point. Their concept is easily

understood: If, for example, you are 30 years old today

and want to retire in 2050, you can pick a TDF 2050

plan. The TDF plan’s initial asset allocation may be

80% stock / 20% bonds, and it adjusts each year to

become more conservative until it’s, say, 20% stock /

80% bonds upon retirement. The concept may be

simple, but fiduciaries’ choice of specific investments

within the TDF plan is not. As the SEC has observed,

“[e]ven target date funds with the same target date

often have very different investments and different

performance returns … the mix of investments all

along the glide path may be more conservative or more

risky than other funds … [and] target date funds with

the same target date charge different fees.” 11 Asking

workers—often lacking expertise in understanding

complex investments—to independently assess the

risks and rewards of TDF plans that also contain

massive allocations of hedge funds and private equity

is unfair, unrealistic, and clearly a bridge too far for

typical 401(k) investors.

Target Date Funds – Investor Bulletin, U.S. Sec. & Exch.

Comm’n (Mar. 25, 2025), https://www.investor.gov/introductioninvesting/general-resources/news-alerts/alerts-bulletins/

investor-bulletins/target-date-funds-investor-bulletin.

Fiduciaries’ Failure to Disclose the

Material

Risks

Investment

Options

Sabotages

Plan

Participants’ Efforts at Self-Help.

ERISA requires fiduciaries to provide full and

accurate information to plan participants who usually

lack the training needed to choose among complex

investment options offered in 401(k) plans. See Barker

v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir.

1995), as amended (Nov. 15, 1995) (“A fiduciary has an

obligation to convey complete and accurate

information

material

the

beneficiary’s

circumstance, even when a beneficiary has not

specifically asked for the information.”); Bins v. Exxon

Co. U.S.A., 220 F.3d 1042, 1049 (9th Cir. 2000) (en

banc) (fiduciary violates duty of loyalty “to plan

participants by failing to disclose material

information”); Washington v. Bert Bell/Pete Rozell

NFL Retirement Plan, 504 F.3d 818, 823 (9th Cir.

2007) (citing Peralta v. Hisp. Bus., Inc., 419 F.3d 1064,

1070 (9th Cir. 2005) (cleaned up) (fiduciaries must

“deal fairly and communicate to the beneficiary all

material facts the trustee knows or should know in

connection with the transaction”). When fiduciaries

keep plan participants in the dark about their

investment choices by failing to disclose material

risks, participants are in no position to challenge

imprudent investments and engage in self-help. This

is especially unfair in circumstances where fiduciaries

offer complex and high-risk investment options.

Here, Anderson’s amended complaint alleges

that Intel—years before the launch of the higher

allocations of private equity and hedge funds in

2011—had ample notice of the inherent risks of their

investments from government and financial industry

reports. With respect to hedge funds, for example,

these reports referenced issues of their inadequate

performance; liberal use of leverage magnifying

losses; low liquidity; difficulty of valuation due to low

transparency; and high fees. See JA167-84 (warnings

of poor performance and high risks). 12 In fact, Intel’s

own hedge fund portfolio had not met expectations as

a buffer in the 2008 financial crisis, losing 17% in

2008, versus a 5.2% gain in the Barclay’s U.S.

Aggregate Bond index. See JA166-67. Intel, starting in

2011, nevertheless doubled down on such

investments, for example increasing TDF’s hedge fund

allocations from about $50 million to $680 million (an

increase of 1,300%). It also increased the private

equity allocation in the Global Diversified Fund from

about $83 million to $810 million (an increase of

968%).

Anderson’s

amended

complaint

further

alleges—in no less than 50 paragraphs—that Intel, in

multiple ways, then failed to warn plan participants of

See also Rolling in it: Why Investors Should Kick up a Fuss

About Hedge-Fund Fees, The Economist (Nov. 16, 2006),

https://www.economist.com/finance-and-economics/2006/11/16/

rolling-in-it; Gary Bruebaker, et al., Principles and Best Practice

for Hedge Fund Investors, U.S. Commodity Futures Trading

Comm’n, 14 (Jan. 15, 2009), https://www.cftc.gov/sites/default/

files/idc/groups/public/@swaps/documents/file/principlespractice

s.pdf; U.S. Gov’t Accountability Off., GAO-08-692, Guidance

Needed to Better Inform Plans of the Challenges and Risks of

Investing in Hedge Funds (Aug. 2008), https://www. gao.gov/

assets/gao-08-692.pdf.

the material risks of these high allocations of hedge

funds and private equity. See JA150-52, 184-200, 21118. Sometimes, as in its Summary Plan Descriptions,

Intel mentioned the inclusion of hedge funds and

private equity in its 401(k) plans without indicating

the risks. 13 Other times, it conceded that high

allocations of hedge funds could “serve as a drag when

markets are experiencing rapid run-ups,” but touted

their supposed protection against stock downturns

without warning of the greater risks versus bonds. 14

Notably, facts (and risks) are “material” and

require disclosure when “a reasonable man would

attach importance (to the fact misrepresented) in

determining his choice of action in the transaction in

question.” United States v. Smith, 155 F.3d 1051, 1065

(9th Cir. 1998) (citing Marx v. Comput. Sci. Corp., 507

F.2d 485, 489 (9th Cir. 1974). There should be no

debate on the materiality of the facts in question in

this case. Yet the Ninth Circuit blithely dismissed the

entirety of Anderson’s non-conclusory allegations, not

bothering to discuss the specifics and implying that

investment risks are immaterial if the investment

plays a diversification role in a larger portfolio, citing

DOL’s regulations and Fourth Circuit precedent. 15

See, e.g., JA336 (2013 Summary Plan Description describing

TDFs and stating nothing more about risk than: “Each fund

offers a broadly diversified mix of domestic and international

stocks and bonds, and includes investments not typically

available to individual investors, such as hedge funds and

commodities. They are professionally managed, continually

monitored, and automatically rebalanced for you.”)

See, e.g., JA651 (Target Date 2045 Fund Fact Sheet).

See Anderson, 137 F.4th at 1024 (“[t]he Department of

Labor’s regulations contemplate that fiduciaries … [should

Neither supports that premise. 16 And in any

event, Tibble and Hughes make clear that every

investment option in a 401(k) menu must not violate

ERISA’s prudence standard. 17 Anderson, therefore,

justifiably alleges that Intel should have alerted plan

participants of the material risks to them. Had Intel

done so, at least some participants could have engaged

in self-help, discussing with family, friends, or a

financial advisor whether there were other better

options for investing their hard-earned savings (e.g.,

an Individual Retirement Account with a straightforward TDF).

Older adults, retired or attempting to do so,

ultimately pay the price when fiduciaries make

imprudent investment decisions and fail to disclose

the material risks to plan participants. Private

follow] the principles of modern portfolio theory, which

recognizes that riskiness of a particular investment … can be

managed through diversification of investment assets”) (citing 29

C.F.R. § 2550.404a-1 and DiFelice v. U.S. Airways, Inc., 497 F.3d

410, 423 (4th Cir. 2007)).

DOL’s regulations merely state that fiduciaries should

consider “the role the investment or investment course of action

plays in that portion of the plan’s investment portfolio or menu

….” 29 C.F.R. § 2550.404a-1(b)(i)-(ii). And the Fourth Circuit in

DiFelice further opined “the [district] court may have overstated

the appropriate relevance of modern portfolio theory …. Under

ERISA, the prudence of investments or classes of investments

offered by a plan must be judged individually.… [Immunizing the

risky fund] would be perverse in light of [DOL’s] direction that

selection of prudent plan options falls within the fiduciary duties

of a plan administrator.” 497 F.3d at 423-24 (emphasis in

original) (cleaned up).

Hughes, 595 U.S. at 175; Tibble, 575 U.S. at 530.

enforcement of ERISA’s fiduciary duties, under proper

pleading standards, is essential to both fairly

compensate the wronged individuals in that

circumstance and to deter future violations that

threaten the financial security of other retirees in

their twilight years.

Even Modest Losses Caused by

Fiduciary Imprudence Can Have

Outsized Impact on the Financial

Security of Retirees in Today’s

Economy.

An overly stringent pleading standard for

ERISA imprudence claims—like that required by the

Ninth Circuit—inhibits plan participants’ ability to

seek redress through a private right of action, “one of

the essential tools for accomplishing the stated

purposes of ERISA.” Pilot Life Ins. Co. v. Dedeaux, 481

U.S. 41, 52 (1987), superseded by statute on other

grounds as explained in Hunger v Ameritech, 779 F.

Supp. 419, 421 (N.D. Ill. 1991); 29 U.S.C. § 1001(b)

(ERISA provides “appropriate remedies, sanctions,

and ready access to the Federal courts”). This

enforcement mechanism is crucial, now more than

ever, as a retirement crisis looms and older workers

rely so heavily on income from their 401(k) plans for

their economic survival.

The sheer number of older adults who now

depend or will depend on their retirement savings

demonstrates the utmost importance of fiduciary

prudence needed to safeguard their investments.

Among working adults (ages 15 to 64), the “most

common type of retirement accounts in 2020 were

401(k)-style accounts.” 18 “Eighty-five percent of Baby

Boomer workers [62-80 years old] are saving for

retirement in a 401(k) or similar plan.” 19 Overall,

“[d]efined contribution plans hold more than $4.4

trillion of workers’ retirement savings.” 20 Since

401(k)s are the hallmark of many workers’ retirement

plans, “welfare in retirement—and even the ability to

retire—hinges on the performance of the mutual funds

in their retirement portfolios.” 21

The outsized impact of even modest shortfalls

in 401(k) income caused by imprudent investments is

compounded by the retirement crisis in this country.

Financial advisors warn that “retirees need to replace

70 percent to 80 percent of their working income.” 22

However, of retirement-age individuals, “[m]ore than

half—52.5 percent—have less than $250,000 in

retirement assets.” 23 These assets are simply

Maria G. Hoffman, et al., New Data Reveal Inequality in

Retirement Account Ownership, U.S. Census Bureau (Aug. 31,

2022), https://www.census.gov/library/stories/2022/08/who-hasretirement-accounts.html.

4 Generations Are Persevering Against Headwinds and

Uncertainties to Prepare for Retirement, Transamerica Ctr. for

Ret. Studies (June 2025), https://www.transamericainstitute.

org/research/publications/details/four-generations-perseveringagainst-headwinds-uncertainties-prepare-for-retirement.

Ian Ayres & Quinn Curtis, Beyond Diversification: The

Pervasive Problem of Excessive Fees and “Dominated Funds” in

401(k) Plans, 124 Yale L.J. 1476, 1479 (Mar. 2015).

Id.

Andy Markowitz, Are the Last Boomers Ready for

Retirement?, AARP (Apr. 19, 2024), https://www.aarp.org/

money/retirement/peak-boomer-readiness/.

Id.

insufficient to maintain financial security. “[W]ell over

half of them will find it challenging to meet their needs

through their retirements, let alone maintain their

current standard of living.” 24 Further, the Elder Index

demonstrates that “[o]ver 19 million (45%) older adult

households do not have the income needed to cover

basic living costs .... And 80%, or about 34 million

households, are unable to weather a major shock such

as widowhood, serious illness, or the need for longterm care.” 25

And for those individuals nearing retirement

age, the concerns appear to intensify. According to

AARP, 69% of adults ages 50-64 are worried about

having enough money to be financially secure in

retirement. 26

Unfortunately,

the

data

demonstrates, these worries are well-founded. One

reason for incoming retirees’ precarious financial

position is that while they must save more than prior

generations, they have had less time and opportunity

to do so. Research shows that “the average 65-year-old

can expect to live another two decades.” 27 Although

Id.

Addressing the Nation’s Retirement Crisis: The 80%, Nat’l

Council on Aging (Oct. 7, 2025), https://www.ncoa.org/article/

addressing-the-nations-retirement-crisis-the-80-percentfinancially-struggling/.

Kathi Brown, AARP Financial Security Trends Survey,

January 2025 Annotated Questionnaire, AARP, 12 (Jan. 2025),

https://www.aarp.org/content/dam/aarp/research/topics/workfinances-retirement/financial-security-retirement/financialsecurity-trends-january-2025-annotated-questionnaire.doi.

10.26419-2fres.00525.049.pdf.

Baby Boomer Retirement Income Expectations and

Opportunities, Am. Equity (Aug. 13, 2018), https://www.

they must account for a longer life expectancy, they

have had less time to save for retirement. Many

incoming retirees “were already mid-career when

401(k) plans were introduced.” 28 With less time to save

but more money required to sustain themselves,

financial security for these older adults is more

difficult to accomplish.

Insufficient retirement assets force older adults

to continue working past retirement age or go back to

work. Financial experts warn that older adults “need

to consider alternative models of retirement, such as

working beyond retirement age, changing one’s

standard of living in retirement, strategies for

deploying retirement savings, or some combination.” 29

Older adults recognize this and “four in 10 ... will

likely work part time in retirement, either by choice or

necessity.” 30 Remarkably, the majority of baby

boomers remain in the workforce. 31 “In 2018, 29% of

Boomers ages 65 to 72 were working or looking for

work, outpacing the labor market engagement of the

Silent Generation (21%) and the Greatest Generation

(19%) when they were the same age.” 32

american-equity.com/insights/baby-boomer-retirement-incomeexpectations-and-opportunities.

4 Generations, supra note 19.

Boomers Face Tougher Retirement Than Their Parents Did,

AARP (Oct. 24, 2018), https://www.aarp.org/money/retirement/

boomers-struggle-home-values/.

Baby Boomer Retirement, supra note 27.

Richard Fry, Baby Boomers are Staying in the Labor Force at

Rates not Seen in Generations for People Their Age, Pew Rsch.

Ctr. (July 24, 2019), https://www.pewresearch.org/short-reads/

2019/07/24/baby-boomers-us-labor-force/.

Id.

However, many older adults will be unable to

work and will depend on prudent returns from their

401(k) plans to survive. Disabilities and health

complications are more likely to affect older adults and

inhibit employment. “By ages 65-74, about one in four

adults has a disability (25 percent for men and 23

percent for women). After 75, the pervasiveness jumps

sharply, affecting nearly half of both men (45 percent)

and women (46 percent).” 33 While the prevalence of

disability continues to grow with age, only 6.8 percent

of all individuals with disabilities find employment. 34

Since the IRS does not penalize adults for

withdrawing early from 401(k) plans when they have

a permanent disability, this source of income becomes

a lifeline for those older adults who are unable to

work. 35

Another reason that imprudent investments in

401(k) plans looms larger for older adults is the

expanding uncertainty of Social Security. Many

incoming retirees will rely on Social Security in

addition to their other retirement assets. 36 While

Point of View on Disability in the Workplace, EBRI (May 8,

2025), https://www.ebri.org/docs/default-source/point-of-view/

pov_5-deidisability-8may25.pdf?sfvrsn=d3d4042f_1.

Id.

Retirement Topics – Disability, IRS (Feb. 26, 2026),

https://www.irs.gov/retirement-plans/plan-participantemployee/retirement-topics-disability#:~:text=A%20plan%20

participant%20may%20receive,still%20be%20reported%20as%

20income.

Robert Shapiro & Luke Stuttgen, The Peak Boomers Impact

Study, 1 (Apr. 2024), https://www.limraconsumer.com/wpcontent/uploads/2024/04/Peak-Boomers-Econ-Impact-Study33

Congress may act to prevent its collapse, Social

Security’s combined trust fund reserves are projected

to be depleted around 2034. 37 Thus, retirees may see

broad cuts of approximately 20% starting around this

time. 38 Given that “62 percent of baby boomers think

Social Security will provide more than half of their

income during retirement,” any substantial cuts will

obviously increase their dependence on robust 401(k)

returns. 39

Imprudent shortfalls in 401(k) income are a

double disaster for low-income workers. It’s no secret

that among older adults, there “is a growing wealth

divide between the bottom 80% and the top 20%.” 40 A

2023 study demonstrates that “vulnerable households

are projected to fall short of their income replacement

target by an annual average of $7,050 by 2040.”41

Further, older adults with low income who have

already begun drawing from their 401(k) plans depend

EXEC-SUMM-ALI-RII-Shapiro-Stuttgen-EMBARGOED-Apr18-2024-041624.pdf.

The Social Security Challenge, Am. Acad. of Actuaries,

https://actuary.org/socialsecurity/ (last visited Apr. 24, 2026).

Shapiro & Stuttgen, supra note 36.

Baby Boomer Retirement, supra note 27.

Jane Tavares, et al., Low-Income Older Adults Die 9 Years

Earlier Than Those With Greatest Wealth, Nat’l Council on

Aging, 7 (2025), https://assets.ncoa.org/ffacfe7d-10b6-0083-2632604077fd4eca/df44501b-7c8e-43ac-8e12-2373288f71d4/2025_

80_Percent_Report.pdf.

John Scott, Millions of Americans Are Falling Behind on

Their Retirement Goals, Pew Charitable Trs. (Oct. 24, 2024),

https://www.pew.org/en/about/news-room/opinion/2024/10/24/

millions-of-americans-are-falling-behind-on-their-retirementgoals.

on those funds for 47% of their annual income. 42 With

these low-income households substantially depending

on their 401(k)s, it is vital that fiduciaries act

prudently.

Finally, even small increases in fees, or

unmitigated plan underperformance, can have an

outsized impact on older adults’ 401(k) retirement

funds. As DOL explained:

Assume that you are an employee with

35 years until retirement and a current

401(k) account balance of $25,000. If

returns on investments in your account

over the next 35 years average 7 percent

and fees and expenses reduce your

average returns by 0.5 percent, your

account balance will grow to $227,000 at

retirement, even if there are no further

contributions to your account. If fees and

expenses are 1.5 percent, however, your

account balance will grow to only

$163,000. The 1 percent difference in fees

and expenses would reduce your account

balance at retirement by 28 percent. 43

In sum, allowing fiduciaries to curtail their

statutory responsibilities at a time when older adults

are barreling towards a retirement crisis is the

42 2022 Survey of Consumer Finances, Bd. of Governors of the

Federal Reserve Bd. (2023), https://www.federalreserve.gov/

econres/scfindex.htm.

A Look at 401(k) Plan Fees, U.S. Dep’t of Lab.,

https://www.dol.gov/node/63354 (last visited Apr. 24, 2026).

antithesis of what Congress intended when enacting

ERISA. Thus, this Court should reject the Ninth

Circuit’s unworkable and impractical pleading rule for

alleging ERISA imprudence claims.

CONCLUSION

For the foregoing reasons, amici respectfully

request the Court to vacate the Ninth Circuit’s

judgment and remand the case for further

proceedings.

April 27, 2026

Respectfully submitted,

LOUIS LOPEZ

Counsel of Record