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

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 Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF PETITIONERS

Bruce Plaxen

President

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street, NW #300

Washington, DC 20001

(410) 730-7737

bruce.plaxen@justice.org

April 29, 2026

Jeffrey R. White

Counsel of Record

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street, NW #300

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES ................................... iv

INTEREST OF AMICUS CURIAE .......................1

INTRODUCTION AND

SUMMARY OF ARGUMENT................................1

ARGUMENT ..............................................................5

I.

The Lower Court’s “Meaningful

Benchmark” Pleading Requirement for

ERISA Enforcement Actions Is Neither

Expressed Nor Implied by the Statutory

Text and Undermines the Intent of

Congress to Empower Workers to Protect

Their Own Retirement Savings by Bringing

a Civil Action for Breach of Fiduciary

Duty. .....................................................................5

A. Congress Enacted ERISA to Safeguard

Workers’ Retirement Savings by Authorizing

a Civil Action to Remedy Losses Caused by

Plan Trustees’ Breach of Their Fiduciary Duty

to Invest Plan Funds Prudently...................... 5

B. Plaintiff’s’ Complaint Sets Forth Factual

Allegations That, Taken as True, Support an

Inference That Intel’s Plan Trustees Did Not

Prudently Design Employees’ Retirement

Plan. ................................................................. 9

ii

C. The Lower Court’s Heightened Pleading

Requirement That a Civil Action Complaint

Identify a “Meaningful Benchmark” Is Not

Supported by ERISA’s Text........................... 14

1. The statutory text does not expressly

require a civil action complaint alleging

loss due to breach of the duty of prudence

to identify a specific “meaningful

benchmark” for comparison. .................... 14

2. ERISA’s definition of the duty of prudence

does not imply a requirement that a

complaint must compare the defendant’s

plan to an actual alternative plan. .......... 16

3. This Court’s reference in Hughes to

“difficult tradeoffs” does not imply that a

complaint must compare the plan to an

actual alternative plan. ............................ 18

II. The Lower Court’s Narrow “Meaningful

Benchmark” Requirement Places District

Courts in the Position of Deciding Issues of

Fact Prior to Discovery While Immunizing

Broad Categories of Egregiously Imprudent

Fiduciary Decisions Affecting Workers’

Retirement Savings. .......................................19

A. The Categorical Requirement That Plaintiffs

Identify a “Meaningful Benchmark” Requires

District Courts to Decide Disputed Questions

of Fact on Motions to Dismiss. ...................... 20

B. The Categorical Requirement That Plaintiffs

Identify a Similar Plan as a “Meaningful

Benchmark” Gives Safe Harbor for Plan

iii

Administrators to Experiment and Gamble

with Workers’ Retirement Savings. .............. 22

III. Imposing Enhanced Pleading

Requirements on ERISA Participants and

Beneficiaries Pursuing the Remedy

Provided by Congress Is Contrary to the

Purpose of ERISA and, If at All in the

Public Interest, Is a Matter for Congress to

Address. .............................................................25

CONCLUSION .........................................................28

iv

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................ 26

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

137 F.4th 1015 (9th Cir. 2025)

......................................... 9–11, 15, 16, 18, 21, 22–25

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

579 F. Supp. 3d 1133 (N.D. Cal. 2022) ............ 10, 21

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .......................................... 14, 20

Atchison, T. & S. F. Ry. Co. v. Calhoun,

213 U.S. 1 (1909) .................................................... 17

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) ................................................ 16

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .......................................... 14, 20

Braden v. Wal-Mart Stores, Inc.,

588 F.3d 585 (8th Cir. 2009) .................................. 27

California Ironworkers Field Pension Tr.

v. Loomis Sayles & Co.,

259 F.3d 1036 (9th Cir. 2001) ................................ 24

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ................................................ 16

v

Cunningham v. Cornell Univ.,

604 U.S. 693 (2025) .......................................... 26–27

Donovan v. Bierwirth,

680 F.2d 263 (2d Cir. 1982)...................................... 8

Fifth Third Bancorp v. Dudenhoeffer,

573 U.S. 409 (2014) .................................... 16, 18, 22

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ................................................ 16

Hughes v. Northwestern Univ.,

595 U.S. 170 (2022) .......................................... 18, 22

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

589 U.S. 178 (2020) .......................................... 16, 28

J.D.B. v. North Carolina, 564 U.S. 261 (2011) ......... 17

Jander v. Retirement Plans Comm. of IBM,

910 F.3d 620 (2d Cir. 2018),

vacated on other grounds, 589 U.S. 49 (2020) ....... 26

Johnson v. Parker-Hannifin Corp.,

122 F.4th 205 (6th Cir. 2024)............... 11, 19, 21–22

LaRue v. DeWolff, Boberg & Assocs., Inc.,

552 U.S. 248 (2008) ................................................ 11

Massachusetts Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985) .................................................. 8

Massachusetts v. Morash,

490 U.S. 107 (1989) .................................................. 8

vi

Matousek v. MidAmerican Energy Co.,

51 F.4th 274 (8th Cir. 2022)................................... 15

Meacham v. Knolls Atomic Power Lab.,

554 U.S. 84 (2008) .................................................. 26

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993) ............................................ 8, 27

Nachman Corp. v. Pension Ben. Guar. Corp.,

446 U.S. 359 (1980) .................................................. 8

National Ass’n of Mfrs. v. Department of Def.,

583 U.S. 109 (2018) ................................................ 16

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ................................................ 16

Smith v. CommonSpirit Health,

37 F.4th 1160 (6th Cir. 2022)................................. 22

Sommers Drug Stores Co. Emp. Profit Sharing Tr.

v. Corrigan Enters., Inc.,

793 F.2d 1456 (5th Cir.1986) ................................... 8

Statutes

Employee Retirement Income Security Act of 1974,

29 U.S.C. § 1001 et seq. .... 2, 8, 10, 15, 17, 18, 26–27

29 U.S.C. § 1001............................................... 27

29 U.S.C. § 1104......................................... 17, 18

29 U.S.C. § 1109..................................... 2, 10, 15

vii

29 U.S.C. § 1132............................... 2, 10, 15, 26

Welfare and Pension Plans Disclosure Act, Pub. L.

No. 85-836, 72 Stat. 997 (1958) ............................... 7

Other Authorities

119 Cong. Rec. S30003 (daily ed. Sept. 18, 1973)... 6, 9

120 Cong. Rec. S29933 (daily ed. Aug. 22, 1974) ....... 9

Brief for Respondents, Hughes v. Northwestern Univ.,

595 U.S. 170 (2022) (No. 19-1401) ......................... 19

Brief for the Chamber of Commerce of the

United States of America as Amicus Curiae,

Anderson v. Intel Corp. Inv. Policy Comm.,

137 F.4th 1015 (9th Cir. 2025)

(No. 22-16268) .................................................. 25, 26

Brief of Investment Company Institute as

Amicus Curiae in Support of Respondents,

Hughes v. Northwestern Univ., 595 U.S. 170 (2022)

(No. 19-1401) .......................................................... 19

Emp. Benefits Sec’y Admin, U.S. Dep’t. of Lab.,

Private Pension Plan Bulletin (Jan. 2026),

https://www.dol.gov/sites/dolgov/files/ebsa/research

ers/statistics/retirement-bulletins/private-pensionplan-bulletins-abstract-2023.pdf ........................... 28

First Amended Consolidated Class Action Complaint,

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

579 F. Supp. 3d 1133 (N.D. Cal. 2022)

(No. 3:19-cv-04618) ........................................... 11–14

viii

H.R. Rep. No. 93-533 (1973) ........................................ 9

James A. Wooten, “The Most Glorious Story of

Failure in the Business”: The Studebaker-Packard

Corporation and the Origins of ERISA,

49 Buff. L. Rev. 683 (2001)....................................... 6

Legislative History of the Employee

Retirement Income Security Act of 1974

(Comm. Print 1976) .............................................. 6, 9

Pensions: The Broken Promise (NBC television

broadcast, aired Sept. 12, 1972), available at

https://www.youtube.com/watch?v=Sjxidl8C_kU ... 7

S. Special Comm. on Aging, 98th Cong.,

The Employee Retirement Income Security

Act of 1974: The First Decade (Comm. Print 1984),

https://www.aging.senate.gov/imo/media/doc/report

s/rpt884.pdf........................................................... 6–8

1

INTEREST OF AMICUS CURIAE 1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in

1946 to strengthen the civil justice system, preserve

the right to trial by jury, and protect access to the

courts for those who have been wrongfully injured.

With members in the United States, Canada, and

abroad, AAJ is the world’s largest plaintiff trial bar.

AAJ members primarily represent plaintiffs in personal injury actions, employment rights cases, consumer cases, and other civil actions, including medical-malpractice litigation. Throughout its 80-year history, AAJ has served as a leading advocate for the

right of all Americans to seek legal recourse for wrongful conduct.

This case is of acute interest to AAJ. Many AAJ

members represent workers whose retirement savings

Congress protected in ERISA. The heightened pleading requirement engrafted onto ERISA by the court

below dilutes those protections.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. Congress enacted the Employee Retirement Income Security Act (“ERISA”) in response to the Studebaker scandal and similar tragedies that robbed

1 Pursuant to Rule 37.6, amicus affirms that no counsel for any

party authored this brief in whole or in part and no person or

entity, other than amicus, its members, or its counsel has made

a monetary contribution to its preparation or submission.

2

workers of their retirement savings. A decade of investigation of America’s pension plans revealed to lawmakers that not only were plans plagued with mismanagement and corrupt practices, but also victimized plan participants and their beneficiaries lacked

any remedy for their wrongful losses. In response,

Congress imposed a high standard of fiduciary duty on

plan administrators and provided an express cause of

action to enforce those standards.

Petitioners in this case were participants in Intel’s

defined-contribution retirement plans. Starting in

2009, Intel announced a dramatic shift in the options

offered for plan participants, adding many non-traditional investment options on the theory that they

would be independent of the stock market. Participants would, therefore, suffer less severe losses in a

market downturn but would gain less than with equities in a rising market. The plans lost significant sums

of money, and Petitioners brought this civil action under ERISA, 29 U.S.C. §§ 1132(a)(2) and 1109(a), to recover those losses.

Significantly, Petitioners did not allege that the

funds’ high costs and/or low returns alone indicated a

breach of fiduciary duty. Nor did they allege that the

administrators’ goal of risk-mitigation was itself imprudent. Rather, they alleged that Intel’s decision to

attain this goal by including in the plans an extraordinarily high proportion of hedge funds and private equity funds gave rise to an inference that the administrators failed in their duty to thoroughly investigate

whether such assets were appropriate for defined contribution retirement plans.

3

Specifically, Petitioners alleged that administrators would have learned that not only did such alternative investments earn less and cost more than traditional equity-heavy investments, but they also are

not truly independent of the stock market and did not

outperform stock-and-bond blended funds during market downturns. Hedge funds and private equity funds

often undertake high-risk ventures and have a high

failure rate, and are thus not suitable for workers

whose savings cannot tolerate large losses. Trustees

would have learned that hedge funds and private equity funds are largely unregulated and lack the transparency needed to protect the value of defined contribution plans. They also lack liquidity and portability,

which can be costly for retirement plans. Accepting Petitioners’ factual allegations as true, their complaint

was clearly sufficient to state a claim for relief that is

plausible on its face.

The court below, however, dismissed their complaint, imposing a heightened pleading requirement

that plaintiffs alleging breach of fiduciary duty in

their selection of investments for an ERISA plan must

identify a “meaningful benchmark,” an alternative

fund with similar aims, risks, and potential rewards,

for comparison.

The plain text of ERISA contains no such provision, and this Court has held squarely that the ERISA

civil action does not require heightened or enhanced

pleading. Nor is such a requirement implicit in

ERISA’s text, which measures fiduciaries’ conduct

against that of the ideal hypothetical prudent investor, but not against the performance of any specific,

actual investment. The lower court conflated the

4

“aims” of ERISA retirement plans (to maximize savings while avoiding excessive risk) with Intel’s strategy for achieving that aim (investment in risky hedge

funds and private equity funds). Finally, this Court’s

admonition to give due regard to the expertise of professional plan administrators addresses factual determinations on the merits of ERISA civil actions. It did

not suggest an enhanced pleading requirement.

2. The requirement that an ERISA plaintiff identify

a specific alternative fund or investment to serve as a

“meaningful benchmark” shifts the district court’s focus on the motion to dismiss from the plausibility of

the alleged misconduct to factual determinations regarding whether the complaint’s comparator is sufficiently similar in aims, risk, and potential rewards to

be “meaningful.” Those factual inquiries, if at all relevant, are more appropriately addressed at the merits

stage of the litigation.

Additionally, the categorical requirement that the

complaint identify a “meaningful benchmark” effectively immunizes fiduciary breaches occurring in myriad other contexts. Where, as here, a plaintiff asserts

that allocation of a high proportion of plan investments to inappropriate, nontraditional investments,

identification of an alternative fund with the same features would hardly be relevant to the plaintiff’s claim.

Similarly, if the complaint alleges plan investments so

imprudent that virtually no other retirement plan includes them, no meaningful benchmark is possible.

Adoption of such a pleading requirement would set up

a perverse incentive: the more imprudent the investment decision by the fiduciary, the more likely the victims will be denied the remedy Congress has provided.

5

3. Supporters of the enhanced pleading requirement

argue that blocking lawsuits prior to any discovery

serves the policies of preventing litigation that target

fiduciaries; avoiding disincentives to innovation, diversification, and choice in employee retirement plans;

and precluding enormous discovery costs for plans.

This Court is not the proper forum to address such policy concerns. This Court has emphasized that, in dealing with an express statutory cause of action, the

court’s role is to apply the law as Congress wrote it.

ERISA is a wide-ranging and complex statute affecting millions of Americans. The civil action Congress provides to enforce ERISA’s fiduciary standard

has served plan participants and beneficiaries well for

over 50 years. If policy reasons warrant change, that

is a matter appropriately addressed by Congress, not

the courts.

ARGUMENT

I.

THE LOWER COURT’S “MEANINGFUL

BENCHMARK” PLEADING REQUIREMENT

FOR ERISA ENFORCEMENT ACTIONS IS

NEITHER EXPRESSED NOR IMPLIED BY

THE STATUTORY TEXT AND UNDERMINES THE INTENT OF CONGRESS TO

EMPOWER WORKERS TO PROTECT

THEIR OWN RETIREMENT SAVINGS BY

BRINGING A CIVIL ACTION FOR BREACH

OF FIDUCIARY DUTY.

A. Congress Enacted ERISA to Safeguard

Workers’ Retirement Savings by Authorizing a Civil Action to Remedy Losses

Caused by Plan Trustees’ Breach of

6

Their Fiduciary Duty to Invest Plan

Funds Prudently.

Oftentimes, a single, tragic event galvanizes Congress to take action against a longstanding problem

plaguing ordinary Americans. One such event, as this

Court has recognized, was “the shutdown of Studebaker operations in South Bend, Ind., in 1963, with

the result that 4,500 workers lost 85 percent of their

vested benefits because the plan had insufficient assets.” 119 Cong. Rec. S30003 (daily ed. Sept. 18, 1973),

reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974, 1599 (Comm.

Print 1976) (statement of Sen. Harrison A. Williams)

[hereinafter Leg. Hist.]. The plight of the Studebaker

autoworkers “burst like a bombshell on the private

pension scene and contributed greatly to the sense

that serious problems affected the plans that needed

addressing.” S. Special Comm. on Aging, 98th Cong.,

The Employee Retirement Income Security Act of 1974:

The First Decade 8 (Comm. Print 1984),

https://www.aging.senate.gov/imo/media/doc/reports/rpt884.pdf [hereinafter Senate Report].

“Studebaker quickly emerged as a ‘battle cry’ for

pension reformers” in Congress. James A. Wooten,

“The Most Glorious Story of Failure in the Business”:

The Studebaker-Packard Corporation and the Origins

of ERISA, 49 Buff. L. Rev. 683, 735 (2001). But, as

Senator Williams reminded his colleagues when he introduced the conference report, it was hardly the only

pension scandal. “[O]ver 19,000 workers lost vested

benefits last year because of the termination of insufficiently funded plans.” 119 Cong. Rec. S30003 (daily

ed. Sept. 18, 1973), reprinted in 2 Leg. Hist., supra, at

7

1600 (statement of Sen. Harrison A. Williams). Workers across the country told shocking stories of setting

aside money through regular deductions from their

paychecks only to find that their retirement savings

had been lost by incompetent or outright corrupt private pension plans. Around the same time, NBC News

aired an investigatory documentary by Edwin Newman highlighting some of those stories for the public.

See Pensions: The Broken Promise (NBC television

broadcast, aired Sept. 12, 1972), available at

https://www.youtube.com/watch?v=Sjxidl8C_kU. The

program earned a Peabody award and added to the national outcry for Congress to do something.

Congress had not been entirely idle. Following

World War II, young soldiers returned to the workforce, many seeking blue-collar jobs that were held by

older workers. Large employers and labor unions

found that retirement plans were a popular benefit.

Favorable tax treatment led to “explosive post-World

War II growth in private plans.” Senate Report, supra,

at 4.

Many of these plans were actuarily unsound, ineptly administered, and plagued with corrupt dealings. In 1958 Congress enacted the Welfare and Pension Plans Disclosure Act, Pub. L. No. 85-836, 72 Stat.

997 (1958), to address these shortcomings by requiring

pension plans to make full disclosure of their provisions and financial operations to their participants.

Senate Report, supra, at 6. Sunshine was not sufficient, however. The legislation “unleashed a nonstop

torrent of mail from employees all over the country

complaining over their failure to qualify for private

pension benefits and mistakenly assuming that the

8

WPPDA provided some remedy in this respect.” Id. at

8 (emphasis added).

Following “a decade of congressional study of the

Nation’s private employee benefit system,” Mertens v.

Hewitt Assocs., 508 U.S. 248, 251 (1993), Congress enacted Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. § 1001 et seq., a “comprehensive and reticulated statute” designed to protect

workers from the loss of their retirement savings by

those entrusted with administering their benefit

plans. Nachman Corp. v. Pension Ben. Guar. Corp.,

446 U.S. 359, 361–62 (1980). Congress specifically intended ERISA to protect ordinary working Americans

who were unsophisticated with respect to investments

markets from “mismanagement of plan assets by plan

administrators,” Massachusetts Mut. Life Ins. Co. v.

Russell, 473 U.S. 134, 140 n.8 (1985), and “safeguard

employees from the abuse and mismanagement of

funds.” Massachusetts v. Morash, 490 U.S. 107, 112

(1989).

To this end, Congress expressly replaced “the inadequacy of current minimum standards,” for plan

trustees that had resulted in “employees and their

beneficiaries [being] deprived of anticipated benefits.”

29 U.S.C. § 1001(a). ERISA imposed a fiduciary standard of care on plan administrators, a duty that is the

“highest known to the law.” Sommers Drug Stores Co.

Emp. Profit Sharing Tr. v. Corrigan Enters., Inc., 793

F.2d 1456, 1468 (5th Cir.1986); Donovan v. Bierwirth,

680 F.2d 263, 272 n.8 (2d Cir. 1982) (Friendly, J.).

But, as Senator Williams bluntly stated when presenting the conference report, a “reason why so many

employees have found their pension expectations to be

9

illusory is that . . . if there are insufficient funds to

meet the vested claims of the participants, they have

no recourse.” 119 Cong. Rec. S30003 (daily ed. Sept.

18, 1973), reprinted in 2 Leg. Hist., supra, at 1599.

ERISA, therefore, included a civil action to ensure

that “individual participants and beneficiaries will . .

. be able to bring suit . . . to obtain redress of fiduciary

violations.” 120 Cong. Rec. S29933 (daily ed. Aug. 22,

1974), reprinted in 3 Leg. Hist., supra, at 4745. See

also H.R. Rep. No. 93-533, at 17 (1973), reprinted in 2

Leg. Hist., supra, at 2364 (“The enforcement provisions have been designed specifically to provide . . .

participants and beneficiaries with broad remedies for

redressing or preventing violations of the Act.”).

This case is largely about efforts by employer

plans to water down those protections.

B. Plaintiff’s’ Complaint Sets Forth Factual

Allegations That, Taken as True, Support

an Inference That Intel’s Plan Trustees

Did Not Prudently Design Employees’

Retirement Plan.

Petitioners were participants in Intel’s 401(k)

Savings Plan and its Retirement Contribution Plan,

both of which are defined contribution ERISA benefit

plans. As the court below explained, beginning in

2009, Intel trustees shifted the plans away from funds

that consisted largely of traditional blends of stocks

and bonds and dramatically increased the proportion

of funds that relied on “alternative” assets, primarily

hedge funds and private equity funds. Anderson v. Intel Corp. Inv. Pol’y Comm., 137 F.4th 1015, 1019 (9th

Cir. 2025). Intel explained to plan participants that

10

these assets would add diversity and would not lose as

much value in a market downturn compared to traditional “equity-heavy” funds. Id.

In fact, Petitioners allege, Intel’s plans lost a great

deal of money due to their large allocation of investments in those alternative assets. Id. at 1024.

Petitioners brought this civil action under 29

U.S.C. § 1132(a)(2), which empowers a plan participant or beneficiary to bring a civil action to hold plan

trustees liable under 29 U.S.C. § 1109(a) to recover for

substantial losses to the plans due to defendants’

breach of their fiduciary duties.

The district court dismissed the action for failure

to state a claim, Anderson v. Intel Corp. Inv. Pol’y

Comm., 579 F. Supp. 3d 1133 (N.D. Cal. 2022), and the

Ninth Circuit affirmed. The court of appeals emphasized that a court cannot infer imprudence in the trustees’ investments simply because their “costs are too

high, or returns are too low.” 137 F.4th at 1022. Nor

could the court infer imprudence from Intel’s “pursuing a purported risk-mitigation strategy” that sacrificed higher returns. Id. at 1024.

But this was not the gist of Petitioners’ claim. Instead, they alleged that, in view of the information

readily available at the time, the trustees’ implementation of their strategy “by investing billions of dollars

in retirement savings in unproven and unprecedented

investment allocation strategies featuring highpriced, low-performing illiquid and opaque hedge

funds and private equity funds” amounted to a breach

of their fiduciary duties. First Amended Consolidated

Class Action Complaint, Anderson v. Intel Corp. Inv.

11

Pol’y Comm., 579 F. Supp. 3d 1133 (N.D. Cal. 2022)

(No. 3:19-cv-04618) [hereinafter Complaint] ⁋⁋ 1, 2.

A brief summary of the extensive and fully documented factual allegations in Petitioners’ original 161page Complaint set out a factual basis far beyond a

mere cost and performance “differential.” 137 F.4th at

1022. These specific and detailed allegations give rise

to a very plausible inference that the trustees failed to

properly research and investigate the past performance of hedge funds and private equity funds and the

inherent features that render them inappropriate to

include as a substantial portion of a defined contribution retirement plan. 2

Plaintiffs specifically showed that Intel increased

the percentage of its investment in private equity,

hedge funds, and commodities in its Retirement Contribution Plan from 6.17% at the end of 2008 to 33%

three years later. Complaint ⁋ 127. Their allocation in

Intel’s 401(k) Savings Plan soared from almost nothing to 23 percent over about the same period. Id. at ⁋⁋

129, 329. Plaintiffs alleged that this heavy emphasis

on hedge funds and private equity funds “drastically

It is important to bear in mind that defined benefit plans are

directed by professional investors. If the plan loses value due to

poor investment choices, participants and their beneficiaries are

nonetheless guaranteed to receive their defined benefit. Defined

contribution plans, such as 401(k) retirement plans, are self-directed by participants who choose from a menu of investments

assembled by the trustees. If the chosen investments lose value,

that loss falls entirely on the individual participant or beneficiary. See LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248,

255–56 (2008); Johnson v. Parker-Hannifin Corp., 122 F.4th 205,

209 (6th Cir. 2024).

2

12

departed from prevailing standards of professional asset managers,” id. at ⁋ 13, and was “the primary cause

of the Intel Funds’ underperformance.” Id. at ⁋⁋ 322–

24.

Hedge funds consistently underperform equity.

Id. at ⁋ 215. From 1998 to 2012, the effective return to

hedge-fund clients has only been 2.1 percent a year,

“half the return they could have achieved by investing

in boring old Treasury bills.” Id. at ⁋ 354–55.

And they specifically underperform equity markets during times of market downturn, the central rationale for including them in Intel’s retirement funds.

They do not add diversity or perform counter to the

stock market because, contrary to Intel’s explanation

to participants, hedge funds often include publicly

traded securities. Id. at ⁋ 236. For that reason, they

have been shown to have very high correlation to stock

market movements. Id. at ⁋ 273.

Consequently, Petitioners allege, “they do not sufficiently outperform equities to compensate for the opportunity losses in an up market.” Id. at ⁋⁋ 214, 238.

Even during the market decline of 2008, which ostensibly prompted defendants’ move toward alternative

assets, “traditional balanced portfolios provided superior returns.” Id. at ⁋ 252. By one measure, an index

of hedge funds lost 17 percent, compared to a 5.2 percent gain in the bond market. Id. at ⁋ 327.

Intel funds also experienced substantially higher

fees and costs, reducing the value of participants’ accounts, because hedge funds and private equity funds

are structured as investment partnerships. Their

management fees are inherently higher, sometimes

13

“ten times higher than the average standard wholesale level fees for pension plan investments.” Id. at ⁋⁋

256, 270. In addition, private equity managers frequently charge additional hidden fees and other inflated fees. Id. at ⁋⁋ 292–93.

Hedge funds and private equity funds tend to be

riskier than stocks and bonds. Their business plans often involve acquiring a stake in a new venture or an

existing corporation that is in severe distress, betting

that the company can be made to succeed. Id. at ⁋ 246.

Unsurprisingly, hedge funds and private equity funds

have “relatively high attrition rates—about 8.5% fail

each year.” Id. at ⁋⁋ 336, 346. Institutions and wealthy

investors that underwrite defined benefit plans can

monitor the progress of risky endeavors and can offset

failures with profitable successes. The worker paying

into a defined contribution plan does not have the information or the expertise needed to closely monitor

such projects or the deep pockets to tolerate their failures. Including them as a substantial portion of a defined contribution plan is not a prudent choice. They

are not prudent choices for defined contribution retirement plans.

Hedge funds and private equity funds lack the liquidity and portability of mutual funds or bond funds.

They often require a long-term commitment of funds

and impose restrictions on participants’ access to their

own investments. Id. at ⁋ 247. Participants seeking to

liquidate or roll over their savings upon retirement or

upon changing employers during a down market may

suffer locked-in losses. Id. at ⁋⁋ 247–50, 265. Intel

should have recognized that allocating substantial

14

amounts of such alternative investments is not appropriate for retirement plans.

Hedge funds and private equity funds are also unacceptably opaque for retirement funds. They are

largely unregulated and therefore lack the transparency of publicly traded funds. Id. at ⁋ 284. Their investment strategies and even their underlying holdings are not reliably known, even to institutional investors. Essentially, Intel’s plan trustees selected assets that are resistant to monitoring and valuation

and thus undermine the trustees’ own effectiveness as

fiduciaries. Id. at ⁋⁋ 233–35, 259–61, 276–77, 289, 298.

All of these factual assertions were supported in

the Complaint by evidence that Intel knew or should

have known when it was adding hedge funds and private equity funds to its retirement plans. To survive a

Rule 12(b)(6) motion to dismiss for failure to state a

claim, “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) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

Petitioners’ complaint does so.

C. The Lower Court’s Heightened Pleading

Requirement That a Civil Action Complaint Identify a “Meaningful Benchmark” Is Not Supported by ERISA’s Text.

1. The statutory text does not expressly require

a civil action complaint alleging loss due to

breach of the duty of prudence to identify a

specific “meaningful benchmark” for comparison.

15

Despite Petitioners’ detailed factual allegations

strongly suggesting that Intel failed to prudently investigate whether hedge funds and private equity

funds were appropriate for Intel’s pension fund, the

court held the complaint could not state a cause of action without also identifying another fund to serve as

a “meaningful benchmark” to compare with Intel’s.

137 F.4th at 1022. The court emphasized that “it is not

enough for a plaintiff simply to allege that the fiduciaries could have obtained better results—whether

higher returns, lower risks, or reduced costs.” Id. at

1021. The complaint must also include a detailed description of another plan, one with similar “aims,”

“risks” and “potential rewards” to compare with the

defendant’s plan. Id. at 1023. Such a comparator, in

the lower court’s view, “provid[es] ‘a sound basis for

comparison—a meaningful benchmark.’” Id. at 1022

(quoting Matousek v. MidAmerican Energy Co., 51

F.4th 274, 278 (8th Cir. 2022)). The court found plaintiffs’ comparisons of Intel’s plans’ performance to other

plans or benchmarks not “meaningful” because those

comparators had “different aims, different risks, and

different potential rewards.” Id. at 1023.

This Court should reverse. ERISA’s statutory text

imposes no requirement that, to state a claim under

29 U.S.C. § 1132(a)(2) for breach of the duty of prudence under 29 U.S.C. § 1109(a), a plan participant

must identify a specific alternative fund for comparison. Rather, this Court has made clear that such complaints are not subject to any enhanced pleading requirement beyond the threshold showing in Federal

Rule of Civil Procedure 8(a)(2) of a “short and plain

16

statement of the claim showing that the pleader is entitled to relief.” See Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 425 (2014).

In ascertaining the meaning of a statute, a court’s

“inquiry begins with the statutory text, and ends there

as well” if the text is unambiguous. National Ass’n of

Mfrs. v. Department of Def., 583 U.S. 109, 127 (2018)

(quoting BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183 (2004)). Courts should “presume that a legislature says in a statute what it means and means in a

statute what it says there,” Connecticut Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (1992), and must not

“replace the actual text with speculation.” Oklahoma

v. Castro-Huerta, 597 U.S. 629, 642 (2022) (citation

omitted).

Consequently, when this case previously came before this Court, Justice Alito informed Intel, “We must

enforce plain and unambiguous statutory language” of

ERISA “according to its terms.” Intel Corp. Inv. Pol’y

Comm. v. Sulyma, 589 U.S. 178, 184 (2020) (quoting

Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,

251 (2010)). That statutory language contains no requirement to plead a “meaningful benchmark.”

2. ERISA’s definition of the duty of prudence

does not imply a requirement that a complaint must compare the defendant’s plan to

an actual alternative plan.

Acknowledging that ERISA does not expressly require that a plaintiff’s complaint identify a “meaningful benchmark,” the court below, found such an enhanced pleading requirement “implicit in ERISA’s

text.” 137 F.4th at 1022.

17

ERISA demands that plan fiduciaries discharge

their duties:

[W]ith the care, skill, prudence, and

diligence under the circumstances

then prevailing that a prudent [person] 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).

The textual provisions are straightforward. A fiduciary is judged in comparison with a “prudent” investor under the circumstances. As with the familiar

“reasonable person” in negligence law, trust law does

not require a plaintiff to identify a specific actual person to compare to the defendant. The prudent investor

is an objective “hypothetical” comparator, J.D.B. v.

North Carolina, 564 U.S. 261, 282 (2011), embodying

the values of the community, “to whose ideal behavior

we are to look as the standard of duty.” Atchison, T. &

S. F. Ry. Co. v. Calhoun, 213 U.S. 1, 9 (1909). Plaintiffs’ extensive factual allegations, if true, were sufficient for a jury to determine that Intel failed to conduct the inquiry that a prudent investor would undertake.

Similarly, the ERISA’s comparison to an enterprise “with like aims” does not require plaintiffs to

identify an alternative plan that, like Intel’s, seeks to

minimize loss in a down market by offering alternative

assets not correlated to the stock and bond markets.

The proper “aims” of a retirement plan within the

18

meaning of 29 U.S.C. § 1104 are “(1) to maximize retirement savings for participants while (2) avoiding

excessive risk.” Dudenhoeffer, 573 U.S. at 420. The

court below conflates these “aims” with the strategy

Intel adopted to achieve those aims. It is the implementation of that strategy, allocating an extraordinarily large proportion of its retirement plans to hedge

funds and private equity funds, that forms the gist of

plaintiffs’ complaint.

3. This Court’s reference in Hughes to “difficult tradeoffs” does not imply that a complaint must compare the plan to an actual

alternative plan.

The lower court sought support in this Court’s

dicta at the end of Justice Sotomayor’s opinion for the

Court in Hughes: “At 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.” 137 F.4th at 1021 (quoting

Hughes v. Northwestern Univ., 595 U.S. 170, 177

(2022)).

The referenced statement lands far from the issues in the present case. At issue in Hughes was the

trustees’ inclusion of “mutual funds and annuities in

the form of ‘retail’ share classes that carried higher

fees than those charged by otherwise identical ‘institutional’ share classes of the same investments.” 595

U.S. at 174. This Court obviously was not suggesting

that the pleading standard for ERISA plaintiffs be increased. Quite the opposite: This Court unanimously

19

reversed the dismissal of plaintiffs’ cause of action for

breach of fiduciary duty.

Rather, Justice Sotomayor ended the Court’s opinion with a simple reminder that factual allegations

that raise an inference of imprudence to survive dismissal may, on the merits, be rebutted by evidence

that the fiduciary did in fact exercise professional

judgment. See, e.g., Johnson, 122 F.4th at 222 (“Once

discovery is exchanged and evidence presented, a jury

could conceivably credit evidence that” fiduciaries met

the standard of prudence).

Respondents and a supporting amicus had argued

to the Court that considerations apart from price may

justify including costlier retail share classes, such as

the minimum-share requirements on institutional

classes or revenue sharing arrangements, See Brief for

Respondents at 8, Hughes v. Northwestern Univ., 595

U.S. 170 (2022) (No. 19-1401); see also Brief of Investment Company Institute as Amicus Curiae in Support

of Respondents at 15–18, Hughes v. Northwestern

Univ., 595 U.S. 170 (2022) (No. 19-1401).

In sum, there is no basis, express or implied in

ERISA’s text, to support the Ninth Circuit’s enhanced

pleading requirement.

II. THE LOWER COURT’S NARROW “MEANINGFUL BENCHMARK” REQUIREMENT

PLACES DISTRICT COURTS IN THE POSITION OF DECIDING ISSUES OF FACT

PRIOR TO DISCOVERY WHILE IMMUNIZING BROAD CATEGORIES OF EGRE-

20

GIOUSLY IMPRUDENT FIDUCIARY DECISIONS AFFECTING WORKERS’ RETIREMENT SAVINGS.

A. The Categorical Requirement That

Plaintiffs Identify a “Meaningful Benchmark” Requires District Courts to Decide Disputed Questions of Fact on Motions to Dismiss.

Plaintiffs made extensive factual allegations from

which a court could infer that Intel failed to conduct

the investigation and research that would have led a

prudent investor to conclude that hedge funds and private equity funds would not serve the aim of growing

employees’ retirement savings with minimum risk.

See supra Part I.B.

To survive a motion to dismiss under Rule

12(b)(6), it is sufficient that a complaint “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. at 678 (quoting Twombly, 550 U.S. at

570) (emphasis added). This plausibility requirement

serves to “give the defendant fair notice of what . . . the

claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555. Rule 8(a) “simply calls for

enough fact to raise a reasonable expectation that discovery will reveal evidence” to support the allegations.

Id. at 556.

The lower court’s added requirement that plaintiffs identify an alternative fund with the same aims,

risks, and opportunities as Intel’s, but which did not

fare as poorly, requires the district court to engage in

21

factual inquiries more appropriately decided on consideration of the merits, not on a Rule 12(b(6) motion

to dismiss. The “meaningful benchmark” requirement

shifts the court’s focus from the alleged misconduct, to

whether the complaint’s comparator is sufficiently

similar to qualify as a “meaningful benchmark.” A district court will necessarily require findings regarding

the aims of the comparator fund, its risks of loss, and

its opportunities for potential gain.

In this case, the district court devoted extensive

factual analysis of the various proposed comparators,

finally concluding that none was sufficiently similar to

Intel’s to provide a “meaningful benchmark.” See 579

F. Supp. 3d at 1149–53. The Ninth Circuit also felt

compelled to delve deeply into the details of alternate

funds and investments that were not Intel’s. See 137

F.4th at 1023–25.

Even more clearly illustrative is another case that

has been presented for this Court’s review. In Johnson

v. Parker-Hannifin Corp., the Sixth Circuit held that

in an action for breach of ERISA fiduciary duty, a

meaningful benchmark “may offer a building block,”

but is not “always necessary in order to state a claim.”

122 F.4th at 216. The panel majority pointedly noted

that the dissent’s application of the “meaningful

benchmark” requirement required it to engage in a

“seven-page long analysis of whether, on the merits,

Johnson's underperformance allegations are sufficient.” Id. at 219 n.4. The court correctly stated that

such a “lengthy exposition of the showing Johnson

would have to make in order to prevail at trial” is “entirely inappropriate” on a motion to dismiss. Id. (emphasis in original). Whether prudent investing would

22

have prevented the plan’s losses “is for the jury to decide.” Id. at 219. See also Smith v. CommonSpirit

Health, 37 F.4th 1160, 1167 (6th Cir. 2022) (providing

a “fund's underperformance, as compared to a ‘meaningful benchmark,’ may offer a building block for a

claim of imprudence,” but cannot “suffice[] alone.”).

Essentially, the Ninth Circuit in this case transformed a matter of evidentiary relevance that may in

some contexts provide a relevant building block into

an atextual element of the ERISA civil action for

breach of fiduciary duty.

B. The Categorical Requirement That

Plaintiffs Identify a Similar Plan as a

“Meaningful Benchmark” Gives Safe

Harbor for Plan Administrators to Experiment and Gamble with Workers’ Retirement Savings.

The Ninth Circuit acknowledged that there are “a

myriad of circumstances” under which ERISA plan

trustees might violate their fiduciary obligation to invest plan funds prudently. 137 F.4th at 1021 (citation

omitted). It stands to reason, as this Court has repeatedly emphasized, that “the content of the duty of prudence turns on the circumstances” and that the court’s

“appropriate inquiry will necessarily be context specific.” Dudenhoeffer, 573 U.S. at 425. For that reason,

reliance on a “categorical rule” is “inconsistent with

the context-specific inquiry that ERISA requires.”

Hughes, 595 U.S. at 173.

But in this case, the Ninth Circuit has imposed a

rigid and narrow categorical pleading requirement in

disregard of context:

23

[T]o the extent a plaintiff asks a court

to infer that a fiduciary used improper methods based on the performance of the investments, as Anderson in part does here, he must compare that performance to funds or investments that are meaningfully similar.

137 F.4th at 1023 (emphasis added).

Petitioners’ factual allegations showed that defendant should have known that hedge funds and private equity funds do not insulate retirement funds

during market downturns, do not minimize costs, do

not provide the transparency that fiduciaries need to

make prudent decisions for plan participants, and do

not provide the liquidity and portability that are essential for retirement plans. All this was not enough,

in the court’s view, to plausibly suggest that Intel’s

strategy of allocating such substantial amounts of

these investments to its retirement plan was imprudent. Id. at 1021. The complaint did not survive a motion to dismiss because it “did not plausibly allege that

Intel’s funds underperformed other funds with comparable aims.” Id. at 1022. Such a “meaningful benchmark” must only be “a better-performing plan or investment” but it must also be one that has “similar objectives,” similar “opportunity for gain,” and “similar

risk.” Id.

By rejecting any comparators that have “different

aims, different risks, and different potential rewards,”

id. at 1023, the court excludes from ERISA’s remedy

victims of many other varieties of breach of fiduciary

duty. For example, the court stated, plaintiff cannot

24

state a cause of action based on “generalized attacks

on hedge funds and private equity funds” as imprudent for retirement funds without identifying which

“specific investments were imprudent.” Id. at 1024–

25. By that reasoning, a trustee’s investment of workers’ savings largely in cryptocurrency assets could not

be alleged to be imprudent if the complaint did not

identify another similar fund that did not lose as

much.

Similarly, Judge Berzon in her concurrence posits

a retirement plan that invests in an asset funded by

lottery tickets. Id. at 1029 (Berzon, J., concurring). It

is unlikely that a plan participant who suffered significant losses would be able to locate another fund with

a similar investment strategy, as is the case here. See

id. at 1023–24. The plaintiff ought to be permitted to

go forward even without “any comparison to other investments or other plans, to support a claim of imprudence.” Id. 3 The court’s demand that a complaint identify a “meaningful benchmark” creates a perverse incentive: it grants immunity to plan administrators

who gamble with retirement savings in ways so egregiously imprudent as to lack comparables.

For example, the Ninth Circuit previously upheld a cause of

action against an investment manager for an ERISA plan who

invested nearly a third of the plan’s assets in a form of mortgagebacked security. California Ironworkers Field Pension Tr. v.

Loomis Sayles & Co., 259 F.3d 1036, 1045 (9th Cir. 2001). The

court upheld the district court's conclusion that the manager

breached the duty of prudence by investing so high a proportion

of the plan's assets in a security that “could be highly risky” without a showing of a comparable plan. Id. at 1045.

3

25

Nor would it be relevant if a plaintiff could identify a lottery-based fund that happened to perform better than the defendant’s. In the case before this Court,

Anderson and other plan participants do not assert

that Intel imprudently selected poorly performing

funds for its menu of options rather than a better-performing investment that had the same aims and the

same heavy reliance hedge funds and private equities.

Plaintiffs allege that the Intel trustees acted imprudently because they chose such non-traditional investments at all. As the court recognized, plaintiffs’ central claim is that, given the information available, “no

prudent investor with the same aims would have invested in them, or at least not in the proportions the

fiduciaries selected.” Id. at 1024.

III. IMPOSING ENHANCED PLEADING REQUIREMENTS ON ERISA PARTICIPANTS

AND BENEFICIARIES PURSUING THE

REMEDY PROVIDED BY CONGRESS IS

CONTRARY TO THE PURPOSE OF ERISA

AND, IF AT ALL IN THE PUBLIC INTEREST, IS A MATTER FOR CONGRESS TO ADDRESS.

The U.S. Chamber of Commerce strongly urged

the Ninth Circuit to adopt the heightened pleading requirement to make it easier to dismiss actions by plan

participants and beneficiaries prior to discovery. See

Brief for the Chamber of Commerce of the United

States of America as Amicus Curiae at 29–30, Anderson v. Intel Corp. Inv. Policy Comm., 137 F.4th 1015

(9th Cir. 2025) (No. 22-16268). The U.S. Chamber argued that making access to the ERISA remedy more

difficult is “necessary to ensure that ERISA fiduciaries

26

are not targeted for class-action litigation,” to avoid

discouraging “innovation, diversification, and employee choice,” and to prevent “enormous [discovery]

costs on plan sponsors. Id. at 26–29.

This Court is not the proper forum for the Chamber’s parade of policy arguments in favor of engrafting

a new pleading requirement onto ERISA, “no matter

how desirable” the Chamber might believe it to be. Alexander v. Sandoval, 532 U.S. 275, 287 (2001). The intent of Congress as expressed in the text of the statute

“is determinative.” Id. Section 1132(a)(2) expressly authorizes plan participants and beneficiaries to sue for

“appropriate relief,” including damages, for breach of

fiduciary duty.”

An express statutory right of action that does not

provide a heightened pleading requirement leaves no

room for judicial creativity. This Court “must ‘read it

the way Congress wrote it.’” Cunningham v. Cornell

Univ., 604 U.S. 693, 708 (2025) (quoting Meacham v.

Knolls Atomic Power Lab., 554 U.S. 84, 101–02

(2008)).

ERISA’s private right of action has been available

to plan participants since 1974 with no judicial requirement that the claimant describe a “meaningful

benchmark.” None of the catastrophic consequences

feared by the U.S. Chamber have come to pass. In fact,

private actions by beneficiaries are “important mechanisms for furthering ERISA’s remedial purpose.”

Jander v. Retirement Plans Comm. of IBM, 910 F.3d

620, 624 (2d Cir. 2018), vacated on other grounds, 589

U.S. 49 (2020). Not only does the robust private civil

action directly serve “ERISA’s remedial purpose and

27

evident intent to prevent” misuse and mismanagement, the Department of Labor “depends in part on

private litigation to ensure compliance with the statute.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

597, 597 n.8 (8th Cir. 2009).

This Court has also discounted the Chamber’s contention that multi-billion-dollar pension plans cannot

afford to open their books in discovery to reveal to participants the decision-making processes affecting their

savings. Courts can tailor discovery to best suit the

limited objective at hand. “[D]istrict courts retain discretionary authority to expedite or limit discovery as

necessary to mitigate unnecessary costs.” Cunningham, 604 U.S. at 709.

In fact, making a participant’s path to the courthouse steeper is contrary to Congress’s declared intent. Congress incorporated its intent in the provisions of the statute itself, declaring it the purpose of

ERISA to:

[E]stablish[] standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and

[provide] for appropriate remedies,

sanctions, and ready access to the

Federal courts.

29 U.S.C. § 1001(b) (emphasis added).

ERISA, a “comprehensive and reticulated statute,” governs employee benefit plans of many types,

including retirement plans. Mertens, 508 U.S. at

251 (internal quotation marks omitted). The law directly affects 155 million pension plan participants

and their beneficiaries. Emp. Benefits Sec’y Admin,

28

U.S. Dep’t. of Lab., Private Pension Plan Bulletin 2

(Jan. 2026), https://www.dol.gov/sites/dolgov/files/

ebsa/researchers/statistics/retirement-bulletins/private-pension-plan-bulletins-abstract-2023.pdf.

Any departure from the plain text of the statute

will have far-reaching implications. As Justice Alito

pointed out, any judicial interpretation to shield fiduciaries from litigation also reduces ERISA’s protections for plan participants and beneficiaries. 589 U.S.

at 188. ERISA’s existing language, which imposes no

heightened pleading requirement to pursue the remedy statute’s civil remedy, reflects the balance Congress has struck. Id. “If policy considerations suggest

that the current scheme should be altered, Congress

must be the one to do it.” Id.

CONCLUSION

For these reasons, the American Association for

Justice urges this Court to reverse the judgment of the

Ninth Circuit Court of Appeals.

April 29, 2026

Respectfully submitted,

JEFFREY R. WHITE

Counsel of Record

BRUCE PLAXEN

President

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, #300

Washington, DC 20001

Counsel for Amicus Curiae