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 A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

PHYLLIS C. BORZI, KAREN HANDORF AND

ALI KHAWAR IN SUPPORT OF PETITIONERS

Jeffrey Lewis

Keller Rohrback

180 Grand Avenue,

Suite 1380

Oakland, CA 94612

(510) 463-3900

Erin M. Riley

Keller Rohrback

1201 Third Avenue,

Suite 3400

Seattle, WA 98101

(206) 623-1900

Elizabeth Hopkins

Counsel of Record

Hopkins ERISA Law

12123 Laurel Terrace Drive

Studio City, CA 91604

(301) 938-7516

hopkinserisalaw@outlook.com

Counsel for Amici Curiae

391897

A

(800) 274-3321 • (800) 359-6859

-iTABLE OF CONTENTS

STATEMENT OF IDENTITY AND INTEREST

OF AMICI CURIAE .............................................. 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT ................................................ 3

ARGUMENT ........................................................... 10

I.

The “Meaningful Benchmark” Standard

Improperly Creates a “Special” Pleading

Rule That Prevents “Careful, ContextSensitive Scrutiny” of Imprudent

Investment Claims. ........................................... 10

II. The “Meaningful Benchmark” Standard

Misconstrues and Weakens ERISA’s

Prudence Standard. ........................................... 14

III. If Allowed to Stand, the Ninth Circuit’s

Rule Erects an Obstacle to the “Ready

Access to the Federal Courts” That

Congress Viewed as Essential to Protect

Plan Participants From Fiduciary

Breaches. ............................................................ 23

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

-iiTABLE OF AUTHORITIES

CASES:

Aetna Health Inc. v. Davila,

542 U.S. 200 (2004) .................................................23

Authier v. Ginsberg,

757 F.2d 796 (6th Cir. 1985) ...................................24

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) .................................................13

Braden v. Wal-Mart Stores, Inc.,

588 F.3d 585 (8th Cir. 2009) ...................................12

Central States, Southeast & Southwest Areas

Pension Fund v. Central Transport, Inc.,

472 U.S. 559 (1985) .................................................15

Cunnigham v. Cornell Univ.,

604 U.S. 693 (2024) .................................................14

DeFelice v. U.S. Airways, Inc.,

497 F.3d. 410 (4th Cir. 2007) ............................17, 18

Donovan v. Bierwirth,

680 F.2d 263 (2d Cir. 1982) ......................................4

Donovan v. Cunningham,

716 F.2d 1455 (5th Cir. 1983) ...........................14, 17

Donovan v. Mazzola,

716 F.2d 1226 (9th Cir. 1983) .................................16

-iiiFifth Third Bancorp v. Dudenhoeffer,

573 U.S. 409 (2014)

........................................... 3, 6, 10, 11, 12, 14, 15, 20

Howard v. Shay,

100 F.3d 1484 (9th Cir. 1996) .................................18

Hughes v. Nw. Univ.,

595 U.S. 170 (2022) ............................... 14, 18, 25, 26

ITPE Pension Fund v. Hall,

334 F.3d 1011 (11th Cir. 2003) .................................4

John Hancock Mut. Life Ins. Co. v.

Harris Trust & Sav. Bank,

510 U.S. 86 (1993) .....................................................3

Katsaros v. Cody,

744 F.2d 270 (2d Cir. 1984) ....................................16

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) .................................................23

Marshall v. Glass/Metal Association,

507 F. Supp. 378 (D. Haw. 1980)............................16

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

473 U.S. 134 (1985) .............................................4, 15

Massachusetts v. Morash,

490 U.S. 107 (1989) ...................................................3

Mator v. Wesco Distribution, Inc.,

102 F.4th 172 (3d Cir. 2024) ...............................5, 17

-ivNachman Corp. v. Pension Benefit Guar.

Corp., 446 U.S. 359 (1980) ........................................3

Parker-Hannifin Corp. v. Johnson,

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

Perez v. Bruister,

823 F.3d 250 (5th Cir. 2016) ...................................12

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) .....................................................3

Sweda v. Univ. of Pennsylvania,

923 F.3d 320 (3d Cir. 2019) .................... 5, 12, 17, 27

Swierkiewicz v. Sorema, N.A.,

534 U.S. 506 (2002) ...........................................12, 13

Tatum v RJR Pension Investment Committee,

761 F. 3d 346 (4th Cir. 2014) ........................ 4, 25, 26

Tibble v. Edison Int’l,

575 U.S. 523 (2015) .................................................19

Varity Corp. v. Howe,

516 U.S. 489 (1996) .............................................4, 15

STATUTES, REGULATIONS, AND RULES:

Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1001, et seq. ..................................1

29 U.S.C. § 1001(a)......................................................3

29 U.S.C. § 1001(b)................................................6, 23

29 U.S.C. § 1104(a)(1) ...............................................15

-v29 U.S.C. § 1104(a)(1)(A)(i) .......................................20

29 U.S.C. § 1104(a)(1)(A)(ii) ......................................20

29 U.S.C. § 1104(a)(1)(B) ............................ 4, 7, 11, 20

29 U.S.C. § 1109(a)....................................................24

29 U.S.C. § 1132(a)(2) ...........................................5, 24

29 U.S.C. § 1132(a)(3) ...........................................5, 24

29 C.F.R. § 2550.404a–1(b)(1)....................... 14, 16, 18

29 C.F.R. § 2550.404a-1(b)(1)(i) ................................17

29 C.F.R. § 2550.404a-1(b)(2)(i) ..........................16, 21

29 C.F.R. § 2550.404a–1(b)(2)(ii) ..............................16

29 C.F.R. § 2550.404a-1(b)(4) ...................................21

Fiduciary Duties in Selecting Designated

Investment Alternations, 91 Fed. Reg. 16088

(proposed Mar. 31, 2026) ..................................21, 24

Fed. R. Civ. P. 8(a) ....................................................14

Fed. R. Civ. P. 8(a)(2) ...................................... 6, 10, 12

Supreme Court Rule 37.2 ...........................................1

Supreme Court Rule 37.6 ...........................................1

-viOTHER AUTHORITIES:

Congressional Research Service (CRS),

U.S. Retirement Assets: Data in Brief

(April 1, 2026) ...........................................................5

CRS, A Visual Depiction of the Shift From

Defined Benefit (DB) to Defined Contribution

(DC) Pension Plans in the Private Sector

(March 25, 2026) .......................................................5

H.R. Conf. Rep. No. 93-1280, 302 (1974),

3 Leg. Hist. 4562 .....................................................15

H.R. Rep. No 93-533 (1973) ......................................24

S. Rep. No. 93-127 (1973)..........................................24

S. Rep. No. 127, 93d Cong., 2d Sess. 47 (1974),

reprinted in 1974 U.S.C.C.A.N. 4639 .......................6

Restatement (Third) of Trusts § 90 (2007),

cmt. f. .......................................................................27

1

STATEMENT OF IDENTITY AND INTEREST

OF AMICI CURIAE 1

This case involves a pleading standard created

and applied by the Ninth Circuit Court of Appeals,

which led that court to affirm the dismissal for failure

to state a claim of a lawsuit brought by participants

against fiduciaries of a defined contribution

retirement plan governed by the Employee

Retirement Income Security Act of 1974 (ERISA),

29 U.S.C. § 1001, et seq. The Ninth Circuit’s standard

mandates that plan participants claiming fiduciary

imprudence in selecting and maintaining plan

investments due to underperformance of the selected

funds must in all instances point in their complaint to

a “meaningful benchmark” and plausibly allege that

the challenged funds underperformed “a relevant

comparator with similar risk-mitigation strategies

and objectives.” Pet. App. 14a.

Amici curiae are three former high-ranking

officials at the United States Department of Labor

with decades of combined experience writing

regulations, setting policy, and bringing lawsuits on

behalf of the government with respect to Title I of

ERISA. All three are ERISA experts who remain

active in the legal community and academia on issues

1 Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amici and their counsel made a monetary contribution to

this brief’s preparation or submission. Pursuant to Supreme

Court Rule 37.2, amici notified counsel for the parties of their

intent to file this brief.

-2pertaining to ERISA, including by speaking, teaching

and writing on ERISA matters.

Phyllis C. Borzi was, from 2009 to 2017, the

Assistant Secretary of Labor of the Employee Benefits

Security Administration (EBSA), the branch of the

United States Department of Labor that oversees

millions of private-sector pension and welfare benefit

plans. In that capacity, as EBSA’s senior-most official,

she had responsibility during her tenure for all of the

agency’s functions, including EBSA’s regulatory,

investigative and enforcement responsibilities. In

addition, for more than 15 years prior to her EBSA

service, Ms. Borzi counseled plan sponsors and

fiduciaries of collectively bargained multiemployer

benefit plans on ERISA issues, including their

responsibilities as investment fiduciaries.

Karen Handorf served as the Deputy Associate

Solicitor, Plan Benefits Security Division, Office of the

Solicitor, U.S. Department of Labor from 2000 until

2007. In that role, she provided guidance and

litigation support to EBSA in many of its functions.

Prior to that time, she was counsel for appellate and

special litigation. In that role, she supervised briefs

setting forth the Department of Labor’s view on many

ERISA issues, including issues related to the

responsibilities of investment fiduciaries for

retirement plans.

Ali Khawar served as the Acting Assistant

Secretary for EBSA from 2021 through late 2022. In

that capacity, he oversaw all of EBSA’s many

functions with respect to ERISA. He was the Principal

Deputy Assistant Secretary for EBSA from 2021 to

-3early 2025. In that capacity, he supervised all of the

agency’s regulatory work.

As former Department of Labor officials who

worked for many years on enforcement and

regulatory issues, including those related to the

duties of ERISA investment fiduciaries, amici offer

both expertise and a unique perspective on the

fiduciary and pleading issues raised in this matter.

Indeed, they not only have a keen interest in the

proper resolution of these issues, they are also

uniquely suited to address the likely impact of the

Ninth Circuit’s flawed pleading standard if adopted

by this Court.

INTRODUCTION AND SUMMARY OF

THE ARGUMENT

As the statute spells out in its first section, and

this Court has repeatedly recognized, ERISA is

fundamentally a remedial statute concerned with

protecting the interests of plan participants and

beneficiaries in receiving the benefits they have been

promised and earned. See 29 U.S.C. § 1001(a); Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983);

Massachusetts v. Morash, 490 U.S. 107, 112, 115

(1989); Nachman Corp. v. Pension Benefit Guar.

Corp., 446 U.S. 359, 374 (1980); Fifth Third Bancorp

v. Dudenhoeffer, 573 U.S. 409, 416 (2014). Thus, “to

help fulfill ERISA’s broadly protective purposes,

Congress commodiously imposed fiduciary standards

on persons whose actions affect the amount of benefits

retirement plan participants will receive.” John

Hancock Mut. Life Ins. Co. v. Harris Trust & Sav.

Bank, 510 U.S. 86, 96 & n.5 (1993) (citations omitted).

-4These fiduciary standards require that plan

fiduciaries manage the money held in trust to support

pensions and other employee benefits with undivided

loyalty and scrupulous care. See, e.g., Massachusetts

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 143 n.10

(1985) (ERISA “imposes a ‘prudent person’ standard

by which to measure fiduciaries’ investment decisions

and disposition of assets”); Tatum v RJR Pension

Investment Committee, 761 F. 3d 346, 355 (4th Cir.

2014) (consistent with its protective purpose “ERISA

imposes high standards of fiduciary duty on those

responsible for the administration of employee benefit

plans and the investment and disposal of plan

assets”); ITPE Pension Fund v. Hall, 334 F.3d 1011,

1013 (11th Cir. 2003) (describing ERISA’s fiduciary

duties as “the highest known to law”); Donovan v.

Bierwirth, 680 F.2d 263, 272 n.8 (2d Cir. 1982) (same).

Indeed, ERISA imposes a stringent version of the

trust-law’s standard of care for fiduciaries, requiring

that plan fiduciaries act “with the care, skill,

prudence, and diligence under the circumstances then

prevailing that a prudent man acting in a like

capacity and familiar with such matters would use in

the conduct of an enterprise of a like character and

with like aims.” 29 U.S.C. § 1104(a)(1)(B).

Although the common law of trusts is the “starting

point” with respect to the duties of ERISA fiduciaries,

“trust law does not tell the entire story” because

“ERISA’s standards and procedural protections partly

reflect a congressional determination that the

common law of trusts did not offer completely

satisfactory protection.” Varity Corp. v. Howe,

516 U.S. 489, 497 (1996) (“Congress ‘expect[ed] that

the courts will interpret th[e] prudent man rule (and

-5the other fiduciary standards) bearing in mind the

special nature and purpose of employee benefit

plans’”) (citations omitted). Accordingly, to meet

ERISA’s prudence standard, the “‘fiduciary’s process

must bear the marks of loyalty, skill, and diligence

expected of an expert in the field.’” Mator v. Wesco

Distribution, Inc., 102 F.4th 172, 183 (3d Cir. 2024)

(quoting Sweda v. Univ. of Pennsylvania, 923 F.3d

320, 333 (3d Cir. 2019)).

The importance of these rules of prudent

management to plan participants and their families,

and to the economy as a whole, can hardly be

overstated given the enormous sums of money held by

pension plans to secure the retirements of over 100

million Americans. See Congressional Research

Service (CRS), U.S. Retirement Assets: Data in Brief

(April 1, 2026) (stating that the Federal Reserve’s

Financial Accounts of the United States reported that

$10.6 trillion was held in private defined contribution

plans and $3.2 trillion in defined benefit plans at the

end of 2024); CRS, A Visual Depiction of the Shift

From Defined Benefit (DB) to Defined Contribution

(DC) Pension Plans in the Private Sector (March 25,

2026) (reporting 96.4 million active defined

contribution plan participants and 11.1 million active

defined benefit plan participants as of 2023 based on

Department of Labor data).

But like most legal requirements, ERISA’s

fiduciary standards are not self-enforcing. They

depend in large measure on the ability of plan

participants and their beneficiaries to bring suit when

they have been injured by plan mismanagement, as

they are expressly empowered to do under the statute.

29 U.S.C. §§ 1132(a)(2), 1132(a)(3). In designing

-6ERISA’s remedial provision in this way, Congress

sought to remove “procedural obstacles” that had

previously hampered effective enforcement of pension

protections, S. Rep. No. 127, 93d Cong., 2d Sess. 47

(1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4838,

487, by providing plan participants and beneficiaries

“ready access to the Federal courts.” 29 U.S.C.

§ 1001(b).

The Ninth Circuit’s “meaningful benchmark”

standard stands in the way of these remedial goals

and is in error for at least three related reasons.

First, this court-created special pleading standard

is out of line with this Court’s rejection of another

“special” court-created rule in Dudenhoeffer, and its

admonition that determining whether plaintiffs have

stated a plausible claim must be accomplished

“through careful, context-sensitive scrutiny of a

complaint’s allegations.” 573 U.S. at 425. As Judge

Berzon correctly stated in her concurring opinion in

the Ninth Circuit, “any set of allegations which, taken

as true and viewed in the plaintiff’s favor, plausibly

support an inference that a fiduciary acted

imprudently is sufficient at the pleading stage.” Pet.

App. 31a. Rule 8(a)(2) of the Federal Rules of Civil

Procedure requires the same. Rather than apply this

kind of flexible and context-specific analysis, the

Ninth Circuit adopted an inflexible requirement that

elevates comparison to a similar investment with

similar aims, whether or not that investment would

be a prudent one, over all other factors that might

indicate, directly or inferentially, that plan fiduciaries

exercised poor judgment with respect to the

investment at issue.

-7Second, as articulated by the Ninth Circuit, the

“meaningful benchmark” standard misconstrues the

fiduciary prudence standard, particularly what

prudence means in the context of an investment

fiduciary. ERISA, by its terms requires, all fiduciaries

to act with the “care, skill, prudence and diligence”

that a prudent person, educated about the matter,

would use, 29 U.S.C. § 1104(a)(1)(B), underscoring the

seriousness and comprehensiveness of what is

required of plan fiduciaries. The standard is

universally understood to be a stringent, objective one

that is not satisfied by good intentions on the part of

the fiduciary or by unthinking or uneducated reliance

on the advice of others. Thus, prudence or lack of

prudence is normally proven through expert

testimony that aims to establish whether a prudent

fiduciary, knowledgeable about such investments,

would choose or maintain the challenged investments

for the pension plan under the circumstances.

Furthermore, although an investment’s history and

outcomes do not tell the whole story, these factors are

hardly irrelevant, particularly when considering an

assertion that the fiduciary failed to properly monitor

and remove a plan investment that had become

imprudent, even if that investment was permissible

at the outset. Nor can ERISA’s duty of care

reasonably be understood as imposing a bare checkthe-box procedural requirement that is unconcerned

with the judgment exercised and the soundness of the

decision reached by the fiduciary at the end of the

process.

None of these important considerations are

factored into the “meaningful benchmark” standard,

and indeed all were ignored or discounted by the

-8Ninth Circuit in this case. The plaintiffs plausibly

alleged that the investments at issue were illdesigned to serve the plan’s purported risk-mitigation

goals, unduly expensive, and unsuitable for securing

retirement income, e.g., JA79-82, 112-114, 280-85,

particularly in light of the high concentration in

private equity, hedge funds, and other alternative

investments. JA57-59 (alleging allocations in such

investment as high as 38% in one fund and 23% in the

other). Thus, the plaintiffs alleged that the plan’s

investment strategies “deviated greatly from

prevailing professional investment standards.” JA910. These plausible allegations, if assumed true, as

required on a motion to dismiss, support an inference

that a prudent fiduciary, knowledgeable about such

investments, would not have pursued the plan’s

investment strategy.

This should have been enough, without more, to

withstand a motion to dismiss, but the Ninth Circuit

imposed a pleading requirement that the plaintiffs

specifically compare the performance of the plan’s

investments

to

a

meaningful

benchmark,

notwithstanding the absence of any such requirement

in ERISA’s text or in the Federal Rules of Civil

Procedure. Having imposed this extra-statutory

requirement, the Ninth Circuit then compounded the

error by disregarding the benchmarks specifically

identified in the plaintiffs’ complaint and supported

by the plaintiffs’ experts. Benchmarking hedge funds

and other private investments is a very complex

undertaking given the paucity of good indices for

these kinds of “alternative” investments, hardly the

kind of issue that lends itself to resolution on the

pleadings. But instead of drawing all plausible

-9inferences in favor of the plaintiffs, the Ninth Circuit

simply resolved all the financial issues in favor of the

defendants, without taking any testimony, expert or

otherwise, on appropriate benchmarks for this plan.

Third, the “meaningful benchmark” standard

cannot be squared with ERISA’s expressly stated goal

of providing “ready access to the Federal courts”

because it sets an impossible to meet pleading

standard for many imprudent investment decisions.

At the heart of the plaintiffs’ allegations was the

assertion that the investment strategies pursued and

the decisions made by the defendants were imprudent

and misaligned with the plan’s risk-mitigation goals.

The Ninth Circuit, however, required that the

plaintiffs rely upon benchmarks that reflected

strategies and approaches similar to those adopted by

the plaintiffs, rather than benchmarks that reflected

the prudent approach urged by the plaintiffs. In

effect, the Ninth Circuit required the plaintiffs to

restrict their comparisons to benchmarks that, in the

court’s view, better mirrored the very strategies that

the plaintiffs alleged were imprudent. This is

particularly problematic in the most egregious

circumstances, as the plaintiffs argue is the case here,

where the investments are so out of line with what

prudent fiduciaries would choose that there is no

comparator that would meet the Ninth Circuit’s

standard.

-10ARGUMENT

I.

The

“Meaningful

Benchmark”

Standard Improperly Creates a

“Special”

Pleading

Rule

That

Prevents “Careful, Context-Sensitive

Scrutiny” of Imprudent Investment

Claims.

The Ninth Circuit’s “meaningful benchmark”

standard cannot be squared with this Court’s

repeated rejection of special rules of pleading and

prudence in ERISA cases, or the Court’s holdings with

respect to the notice pleading standard of Rule 8(a)(2).

In Dudenhoeffer, this Court addressed whether

fiduciaries to an employee stock ownership plan

(“ESOP”) are entitled to a presumption that they have

acted prudently by buying and continuing to hold

stock in the sponsoring company, as the Sixth Circuit

and several others had held. 573 U.S. at 414.

Rejecting this court-created approach to prudence,

the Court held that ERISA “does not create a special

presumption favoring ESOP fiduciaries” because,

subject to an exception from ERISA’s diversification

requirement for ESOPs not applicable here, “the same

standard of prudence applies to all ERISA

fiduciaries.” Id. at 418-19. The Court was not moved

by the argument “that the threat of costly duty-ofprudence lawsuits will deter companies from offering

[retirement] to their employees,” id. at 423. The Court

was unconvinced “that the presumption at issue here

is an appropriate way to weed out meritless lawsuits

or to provide the requisite ‘balancing.’” Id. at 425.

Instead, because the “proposed presumption makes it

impossible for a plaintiff to state a duty-of-prudence

-11claim, no matter how meritorious, unless the

employer is in very bad economic circumstances,” it

would “not readily divide the plausible sheep from the

meritless goats.” Id. “That important task, this Court

held, “can be better accomplished through careful,

context-sensitive

scrutiny

of

a

complaint’s

allegations.” Id.

The same is true of the “meaningful benchmark”

standard at issue here. ERISA itself does not, either

expressly or implicitly, contain such a standard

applicable to determining prudence based on an

investment’s underperformance. Instead, ERISA

contains a single standard of prudence that allows a

plaintiff to state a claim through “any set of

allegations” sufficient “to plausibly support an

inference that a fiduciary” did not act with the “care,

skill, prudence and diligence” that a prudent person,

educated about the matter, would use in making the

investment decisions at issue, 29 U.S.C. §

1104(a)(1)(B). Pet. App. 31a (Berzon, J., concurring).

The Sixth Circuit recognized as much in ParkerHannifin Corp. v. Johnson, 122 F.4th 205 (6th Cir.

2024), where the court held that such a benchmark is

not always required when plaintiffs allege that

fiduciaries acted imprudently in investing plan assets

in an underperforming fund. Id. at 216. Thus, the

Sixth Circuit correctly recognized that plaintiffs may

state an imprudence claim by pleading any set of

“facts to give rise to an inference” that the fiduciaries’

“real-time decision-making process” was insufficient,

id., or, more broadly, that would support an inference

that the fiduciaries did not act as a prudent person

would under the circumstances. Moreover, as with the

presumption of prudence that this Court rejected in

-12Dudenhoeffer, the “meaningful benchmark” standard,

as applied by the Ninth Circuit, is ill-suited to the

task of sorting meritless from meritorious claims

because it makes it impossible for plaintiffs to

establish imprudence where, as the plaintiffs assert

is the case here, the chosen investments are so

imprudent and unusual that there are no real-world

comparators, and it is inappropriate to compare them

with hypothetical benchmarks that reflect “similar”

investment strategies.

“The open-endedness of the inquiry into whether a

fiduciary acted with care makes sense because,” as

the Fifth Circuit has correctly noted, “the nature of a

fiduciary’s responsibility is itself open-ended.” Perez

v. Bruister, 823 F.3d 250, 264 (5th Cir. 2016). See also

Sweda, 923 F.3d at 331 (“employ[ing] a holistic

approach” to evaluate ERISA complaint); Braden v.

Wal-Mart Stores, Inc., 588 F.3d 585, 598 (8th Cir.

2009) (noting that ERISA’s “remedial scheme * * *

counsel[s] careful and holistic evaluation of an ERISA

complaint’s factual allegations before concluding that

they do not support a plausible inference that the

plaintiff is entitled to relief”). The Ninth Circuit’s

inflexible pleading rule cannot be squared with this

open-ended, holistic approach.

For much the same reason, as applied by the Ninth

Circuit, the standard is hard to square with the

“simplified notice pleading standard” of Rule 8(a)(2)

of the Federal Rules of Civil Procedure, which “relies

on liberal discovery rules and summary judgment

motions to define disputed facts and issues and to

dispose of unmeritorious claims.” Swierkiewicz v.

Sorema, N.A., 534 U.S. 506, 512 (2002) (citations

omitted) (rejecting a special pleading rule requiring

-13plaintiffs in all employment discrimination suits to

plead the elements of a prima facie case of

discrimination). See also Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (noting with

approval Swierkiewicz’s emphasis of the “liberal

pleading requirements” embodied in the Federal

rules; internal quotation marks and citation

omitted)).

In fact, in accepting Respondents’ contention that

the challenged investments were chosen to mitigate

risk, and in rejecting Petitioners’ arguments that they

could not sensibly have been chosen for that reason

because they were too concentrated in risky and costly

investments, the lower court appears to have turned

on its head the rule that, in deciding a motion to

dismiss, courts must assume “that all the allegations

in the complaint are true.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citations

omitted). See also id. at 556 (“a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable”).

Without any presentation of evidence, the court

effectively resolved expert issues on proper riskmitigation strategy, rejected allegations that the

defendants’ investment strategy, as implemented by

the defendants was inconsistent with the plan’s

purported risk-mitigation goals, ignored or

discounted the allegations that the defendants’

strategy was an outlier that was inconsistent with the

conduct of knowledgeable investment managers, and

rejected the benchmarks offered by the plaintiffs and

supported by their experts.

As this Court has done with regularity in ERISA

cases in particular, it should continue to resist the call

-14to apply anything other than the ordinary rules of

civil procedure here. See, e.g., Cunnigham v. Cornell

Univ., 604 U.S. 693, 601-02 (2024) (applying ordinary

rule that plaintiffs need not plead or prove elements

of an affirmative defense). So too, the Court should

continue to reject categorical rules of fiduciary

conduct and instead require courts to assess prudence

in a flexible manner based on the facts and

circumstances presented. See Hughes v. Nw. Univ.,

595 U.S. 170, 173 (2022) (rejecting the Seventh

Circuit’s categorical rule that, because lower cost

investments were available to participants in a

defined contribution plans, plaintiffs’ allegations of

imprudence with regard to higher cost investment

options failed as a matter of law); 29 C.F.R. §

2550.404a-1(b)(1) (a fiduciary’s investment decisions

are prudent if the fiduciary “[h]as given appropriate

consideration to those facts and circumstances that

* * * are relevant to the particular investment * * *

involved * * * and [h]as acted accordingly”).

The “meaningful benchmark” rule should be

rejected because it is a categorical rule of pleading

that is inconsistent with the approach taken by this

Court in cases such as Dudenhoeffer, Hughes and

Cunningham, and with notice pleading under Rule

8(a).

II.

The

“Meaningful

Benchmark”

Standard Misconstrues and Weakens

ERISA’s Prudence Standard.

The “meaningful benchmark” standard should

also be rejected for a related reason: it is

fundamentally at odds with ERISA’s fiduciary duty of

prudence and threatens to significantly undermine

-15that standard, particularly with respect to fiduciaries

that choose and manage plan investments.

Under ERISA, a plan fiduciary must administer

the plan “solely in the interest of the participants and

beneficiaries and * * * with 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). Thus, the

statute “requires the fiduciary of a pension plan to act

prudently in managing the plan’s assets,”

Dudenhoeffer, 573 U.S. at 411-12, by “impos[ing] a

‘prudent person’ standard by which to measure

fiduciaries’ investment decisions and disposition of

assets.” Russell, 473 U.S. at 143 n.10. This duty of

prudence is “derived from the common law of trusts,”

Central States, Southeast & Southwest Areas Pension

Fund v. Central Transport, Inc., 472 U.S. 559, 570

(1985), as adapted to “‘the special nature and purpose

of employee benefit plans.’” Varity Corp., 516 U.S. at

497 (quoting H.R. Conf. Rep. No. 93–1280, pp. 295,

302 (1974), 3 Leg. Hist. 4562, 4569).

In previously promulgating regulations describing

the fiduciary duties of those tasked with selecting and

maintaining plan investments, the Department of

Labor has correctly stressed that prudence requires

such fiduciaries to act in accordance with an

appropriate consideration of the relevant facts. Thus,

under the regulation, an investment fiduciary has

acted prudently if that fiduciary has:

given appropriate consideration to those facts

and circumstances that, given the scope of such

-16fiduciary’s investment duties, the fiduciary

knows or should know are relevant to the

particular investment or investment course of

action involved, including the role the

investment or investment course of action

plays in that portion of the plan’s investment

portfolio or menu with respect to which the

fiduciary has investment duties; and * * * acted

accordingly.

29 C.F.R. § 2550.404a–1(b)(1).

“Appropriate consideration” includes, but is not

limited to “[a] determination by the fiduciary that the

particular investment * * * is reasonably designed

* * * to further the purposes of the plan, taking into

consideration the risk of loss and the opportunity for

gain * * * compared to the opportunity for gain

(or other return) associated with reasonably available

alternatives with similar risks.” Id. (b)(2)(i). It also

includes

consideration

of

the

portfolio’s

diversification, liquidity, and projected return

relative to the plan’s funding objectives. Id. (b)(2)(ii).

Prudence is thus a facts-and-circumstances test

that “is measured according to the objective ‘prudent

person’ standard developed in the common law of

trusts.” Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.

1984) (citing Donovan v. Mazzola, 716 F.2d 1226,

1231 (9th Cir. 1983)) (additional citations omitted).

The fiduciary’s “lack of familiarity with investments

is no excuse: under an objective standard, trustees are

to be judged ‘according to the standards of others

acting in a like capacity and familiar with such

matters.’” Katsaros, 744 F.2d at 279 (quoting

Marshall v. Glass/Metal Association, 507 F. Supp.

-17378, 384 (D. Haw. 1980)). Thus, a fiduciary must act

with the “‘loyalty, skill, and diligence expected of an

expert in the field.’” Mator v. Wesco Distribution, Inc.,

102 F.4th 172, 183 (3d Cir. 2024) (quoting Sweda,

923 F.3d at 329). Nor are good intentions good

enough. Sweda, 923 F.3d at 329 (“It is not enough to

avoid misconduct, kickback schemes, and bad-faith

dealings. The law expects more than good

intentions.”); Donovan v. Cunningham, 716 F.2d

1455, 1467 (5th Cir. 1983) (“a pure heart and an

empty head are not enough”); DeFelice v. U.S.

Airways, Inc., 497 F.3d. 410, 418 (4th Cir. 2007)

(same, quoting Donovan).

In applying its one-size-fits-all “meaningful

benchmark” standard to all cases where participants

allege imprudence based on cost or underperformance

of plan investments (at least where they do not have

direct proof of a flawed process), the Ninth Circuit

misunderstood the facts-and-circumstances nature of

a prudence analysis under ERISA. See 29 C.F.R.

§ 2550.404a-1(b)(1)(i)

(fiduciaries

must

give

“appropriate consideration to those facts and

circumstances that” they “know[] or should know are

relevant to the particular investment or investment

course of action involved”). Likely for this very reason,

the court ignored many important factors relevant to

determining

whether the defendants acted

imprudently with respect to the decisions to include

and maintain the challenged investments.

The appellate court’s missteps began with the

apparent notion that the prudence standard is an

entirely procedural standard that is divorced from the

actual merits of the investment decision. Pet. App.

10a-11a. But ERISA’s duty of care cannot reasonably

-18be understood as imposing a bare procedural

requirement that is unconcerned with the judgment

exercised and the decision reached by the fiduciary at

the end of the process. To the contrary, in determining

whether a fiduciary has acted prudently, courts must

focus both “on the merits of [a] transaction,” as well

as “on the thoroughness of the investigation into the

merits of [that] transaction.” Howard v. Shay,

100 F.3d 1484, 1488 (9th Cir. 1996). Accord DeFelice,

497 F.3d. at 418 (quoting Howard). Likewise, the

Department of Labor’s fiduciary regulation provides

that, to meet the statutory prudence standard, a

fiduciary must not only have employed a prudent

process in making investment decisions but must

have “acted accordingly.” 29 C.F.R. § 2550.404a–

1(b)(1).

In a similar vein, the court of appeals mistakenly

discounted the performance history of the challenged

investments, stressing that because courts must

“evaluate prudence prospectively, based on the

methods the fiduciaries employed, rather than

retrospectively, based on the results they achieved, 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—by choosing different investments.” Pet. App.

10a. However, an historical review of an investment’s

poor performance relative to costs is likely to be

relevant to a prudent analysis, whatever the process

employed. This is particularly the case when

considering an assertion that the fiduciary failed to

properly monitor and remove a plan investment that

had become imprudent, even if it was permissible at

the outset. See Hughes, 595 U.S. at 176 (“If the

-19fiduciaries fail to remove an imprudent investment

from the plan within a reasonable time, they breach

their duty.”); Tibble v. Edison Int’l, 575 U.S. 523, 530

(2015) (“A plaintiff may allege that a fiduciary

breached the duty of prudence by failing to properly

monitor investments and remove imprudent ones.”).

The Ninth Circuit likewise missed the mark in

rejecting the plaintiffs’ comparisons to more “equityheavy funds” with lower fees, including “published

indices like the S&P 500 and Morningstar categories

of peer group funds,” Pet. App. 14a, and in holding

that the plaintiffs were required to plead

underperformance

relevant

to

funds

with

“comparable aims” and “the same asset allocation,”

such as the fiduciaries’ hypothetical “customized

benchmarks.” Id. 13a. Indeed, based on nothing but

the complaint, which attached expert reports

explaining that the challenged funds significantly

underperformed relative to a number of meaningful

comparators, including ones that the defendants

referenced in their disclosures to plan participants,

the court went so far as to conclude that the plaintiffs’

“putative comparators were not truly comparable

because they had ‘different aims, different risks, and

different potential rewards,’” id. 14a (citation

omitted). See also Parker-Hannifan Corp, 122 F.4th

at 218 (Murphy, J., dissenting) (asserting that a count

alleging imprudence in investing fails unless it

“includes enough details about the [comparators] to

suggest that they are interchangeable in all material

respects but their returns”). This is both inconsistent

with normal pleading standards and is wholly

unsupported by the text and aims of ERISA.

-20The court reasoned that its requirement that the

complaint allege a “relevant comparator with similar

objectives” is “implicit” in the language of ERISA’s

prudence provision, which refers to a “prudent person

‘acting in a like capacity * * * in the conduct of an

enterprise of a like character and with like aims.’” Pet.

App. 12a. However, in the context of this case, the

statutory reference to “an enterprise of a like

character with like aims” is most naturally read as

simply referring to the standards applied by

professional asset managers with the expertise

necessary to promote the standard retirement plan

goals to “(1) to maximize retirement savings for

participants while (2) avoiding excessive risk.”

Dudenhoeffer, 573 U.S. at 420. Thus, “[t]aken in

context, § 1104(a)(1)(B)’s reference to ‘an enterprise of

a like character and with like aims’ means an

enterprise with * * * the ‘exclusive purpose’ to be

pursued by all ERISA fiduciaries: ‘providing benefits

to participants and their beneficiaries’ while

‘defraying reasonable expenses of administering the

plan.’” Ibid. (quoting 29 U.S.C. §§ 1104(a)(1)(A)(i),

(ii)). Nothing about this provision requires a plaintiff

alleging an imprudent investment decision to point to

a comparator with the same risk profile, strategies,

and aims, much less that they adopt such a

comparator when the crux of the plaintiffs’ case is

that the investment strategy is flawed in its design. 2

Moreover, contrary to the Ninth Circuit’s understanding, the

Department of Labor regulations do not “provide that the duty

of prudence is satisfied if the fiduciary has made a determination

that a chosen investment “is reasonably designed, as part of the

2

-21Indeed, finding a relevant comparator for

investments in alternative assets is often no easy

task, both because there are no well-defined

alternative indices, and because the underlying

assets for the indices that do exist are not always

readily available and so may not be easy to duplicate.

See Fiduciary Duties in Selecting Designated

Investment Alternations, 91 Fed. Reg. 16088, 16117

(proposed Mar. 31, 2026) (in regulatory impact

analysis to recent proposal, the Department of Labor

notes that “when using an alternative index, the

underlying assets within the index are often not

easily investable, meaning that an asset manager

would not be able to easily invest in the same

underlying assets and could not replicate the index”).

“In addition, * * * private equity and hedge fund data

is reported voluntarily to indices,” resulting in

“indices [that] are more likely to reflect better

performers, who have an incentive to report.” Id. at

11618 (also noting that “failed funds are removed

from indices, creating an inherent survivorship bias

that over-weights better performing funds”). For

these reasons, and because “private market

investments * * * do not have a market price,” ibid.,

assets of this type are considered hard to value. In

portfolio * * * , to further the purposes of the plan, taking into

consideration the risk of loss and the opportunity for gain * * *

compared to the opportunity for gain * * * associated with

reasonably available alternatives with similar risks.” Pet. App.

12a-13a (quoting 29 C.F.R. § 2550.404a-1(b)(2)(i)) (emphasis

added by Ninth Circuit). Rather, the regulations list this

comparison as among the non-exclusive factors that must be

given “appropriate consideration” by a fiduciary, who must then

weigh that factor to “reflect a reasonable assessment of its

impact on risk-return.” Id. § 2550.404a-1(b)(4).

-22light of the complexities in benchmarking these kinds

of assets, and the limitations in the available indices,

the Ninth Circuit’s resolution of these fact-dependent

financial issues seems particularly inappropriate on

the pleadings.

Second, the court effectively ignored the statute’s

express comparison between the actions of a prudent

person familiar with such matters and the actions of

the plan’s fiduciaries. In this case, the plaintiffs

expressly alleged that the actions taken by the plan

fiduciaries were inconsistent with the plan’s riskmitigation goal and with the conduct of

knowledgeable investment professionals responsible

for the prudent management of other people’s money.

JA9-10, 183-84, 201-03, 206-09. Thus, the plaintiffs’

allegations directly tracked the statutory standard.

In requiring a comparison to another investment

with a similar risk-profile and aims, the court

accepted the fiduciaries’ assertion that its heavy

investments in private equity and hedge funds were

designed to “‘provide greater downside protection in

faltering markets,’” Pet. App. 13a, without any

analysis into whether the plan’s investments were at

all likely to deliver on this. In fact, the complaint

alleged that the investments were not well designed

and did not in fact deliver such protection, JA92-93,

98-99, 176-77, 277-78, and that a prudent fiduciary

would not have chosen or maintained these

investments “at the proportions that the fiduciaries

selected”

given,

among

other things,

the

“contemporaneous reports of poor hedge-fund

returns, the exorbitant expenses of hedge funds and

private equity, and [their] well-recognized risks.” Pet.

App 16a (internal quotation marks omitted).

-23The court, however, rejected the plaintiffs’

assertions as an impermissible per se challenge to

private equity and hedge funds, while simultaneously

accepting the fiduciaries’ assertion that it intended

these funds to mitigate risk. What the truth of the

matter is—whether these funds were well-designed to

mitigate risk in a downturn—cannot be determined

without the development and weighing of evidence,

likely including expert testimony of the type that the

plaintiffs’ previewed in their complaint. But

assuming, as one must at the pleading stage, the

plaintiffs’ factual contention that the investments

were not well designed to mitigate risk, and that a

prudent fiduciary would not have undertaken or

maintained these investments given all the marks

against them, it is impossible to understand what is

accomplished

by

requiring

comparisons

to

investments pursuing similar strategies, as opposed

to investments that would better serve the plan’s riskmitigation goals.

III. If Allowed to Stand, the Ninth

Circuit’s Rule Erects an Obstacle to

the “Ready Access to the Federal

Courts” That Congress Viewed as

Essential to Protect Plan Participants

From Fiduciary Breaches.

“Congress enacted ERISA to ‘protect * * * the

interests of participants in employee benefit plans

and their beneficiaries’ by setting out substantive

regulatory requirements for employee benefit plans

and to ‘provid[e] for appropriate remedies, sanctions,

and ready access to the Federal courts.’” Aetna Health

Inc. v. Davila, 542 U.S. 200, 208 (2004) (quoting

29 U.S.C. § 1001(b)). See also Lexmark Int’l, Inc. v.

-24Static Control Components, Inc., 572 U.S. 118, 131

(2014) (“Identifying the interests protected by” a

statute “requires no guesswork” when there is a

“detailed statement of the statute’s purposes.”).

“Broad enforcement provisions effectuate this

policy.” Authier v. Ginsberg, 757 F.2d 796, 801

(6th Cir. 1985). Among other forms of relief, ERISA

Section 409(a) makes fiduciaries who breach any of

their obligations under ERISA personally liable for

plan losses, 29 U.S.C. § 1109(a). Section 502(a)(2), in

turn, expressly allows plan participants and

beneficiaries, as well as the Secretary of Labor and

fiduciaries, to sue for “appropriate relief” under

Section 409(a), id. § 1132(a)(2), whereas Section

502(a)(3) allows participants, beneficiaries and

fiduciaries to sue for injunctive and “other

appropriate equitable relief.” Id. § 1132(a)(3). These

provisions make clear that Congress viewed private

litigation by plan participants and beneficiaries as an

essential way to ensure that they can protect their

rights under pension plans. See, e.g., S. Rep. No. 93127, at 35 (1973) (describing Senate version of

enforcement provisions as intended to “provide both

the Secretary and participants and beneficiaries with

broad remedies for redressing or preventing

violations of [ERISA]”); H.R. Rep. No 93-533, at 17

(1973) (describing House version in identical terms).

As the Department of Labor continues to

recognize, there are significant challenges to finding

appropriate comparators for private market

investments of the type in which the challenged funds

in this case were heavily invested. See 91 Fed. Reg. at

16117-18 (describing “Challenges to Comparing

Alternative Asset Performance”). The Ninth Circuit,

-25nevertheless, was unmoved by the plaintiffs’

argument that “that there are ‘no meaningful

comparators for the fiduciaries’ decision’ because [the

fiduciaries’] approach ‘was unusual, if not

unparalleled.’” Pet. App. 15a. The court considered it

sufficient that the fiduciaries invoked and disclosed a

“risk-mitigation strategy” as the justification for

including its bespoke investment funds in the plans,

suggesting that, once invoked, such a strategy could

not be challenged, even if the plaintiffs alleged that

the defendants’ investment strategy was inconsistent

with its risk-mitigation goals. Ibid. (stating that

“courts have routinely rejected claims that an ERISA

fiduciary can violate the duty of prudence by seeking

to minimize risk”) (citations omitted). Moreover,

ignoring this Court’s holding in Hughes, 595 U.S. at

742, that imprudent investment choices by fiduciaries

are not insulated by the availability of other prudent

options, the Ninth Circuit suggested that courts may

not assess the prudence of individual investments.

Pet. App. 16a (stating that “the prudence of each

investment is not assessed in isolation but, rather, as

the investment relates to the portfolio as a whole”)

(citation and internal quotation mark omitted). See

also id. 17a (invoking “principles of modern portfolio

theory”).

In a different context, the Fourth Circuit correctly

rejected a special prudence standard under which

“ERISA’s

protections

would

be

effectively

unenforceable any time a fiduciary invokes the

talisman of ‘diversification,’” thus placing “numerous

investment decisions beyond the reach of ERISA’s

fiduciary liability provision.” Tatum, 761 F.3d at 370

(concluding that fiduciaries acted imprudently in too

-26quickly liquidating employer stock funds after a

corporate merger and spin-off). Here, the Ninth

Circuit found that it sufficed for the fiduciaries to

assert, at the outset of a case, that they acted in

pursuit of risk-mitigation, even though the plaintiffs

alleged, based on expert opinions and other evidence,

that the strategy that the fiduciaries adopted was, in

fact, poorly designed to mitigate risk. Thus, under the

Ninth Circuit’s “meaningful benchmark” standard, so

long as the plaintiffs cannot point to another

investment fund with the same poorly designed

strategy that did better, their complaint will be

dismissed. As in Tatum, this is a result that

“Congress certainly did not intend” as it will “neither

deter a fiduciary’s imprudent decision-making, nor

provide a make-whole remedy for injured

beneficiaries.” Ibid.

Defendants attempt to justify the Ninth Circuit’s

standard

by

pointing

to

this

Court’s

acknowledgement that “[a]t times, the circumstances

facing an ERISA fiduciary will implicate difficult

tradeoffs, and courts must give due regard to the

range of reasonable judgments a fiduciary may make

based on her experience and expertise.” Brief in

Opposition, p. 5 (quoting Hughes, 595 U.S. at 177).

But any suggestion that fiduciary discretion supports

a loosening of the prudence standard or deferential

review of such decisions by a court should be rejected.

Although discretion is normally a hallmark of

fiduciary activity, this does not mean that a fiduciary

exercising such discretion in choosing plan

investments is entitled to deference when assessing

the prudence of that fiduciary’s actions. “Discretion is

bounded by the prudent man standard,” and thus

-27“does not mean * * * that the legal standard of

prudence is without substantive content or that there

are no principles by which the fiduciary’s conduct may

be guided and judged.” Sweda, 923 F.3d at 333.

“Rather a fiduciary’s conduct at all times ‘must be

reasonably supported in concept and must be

implemented with proper care, skill, and caution.’”

Ibid. (quoting Restatement (Third) of Trusts § 90

(2007), cmt. f.). Thus, “[f]iduciary discretion must be

exercised within the statutory parameters of

prudence and loyalty,” Sweda, 923 F.3d at 323, which

“impose a fiduciary standard that is considered ‘the

highest known to the law.’” Sweda, 923 F.3d at 323

(citing DOL Advisory Op. 2006-08A, 2006 WL

2990326, at *3) (additional citations omitted).

It is certainly true that in many instances a

fiduciary considering plan investments will have

more than one prudent choice, just as the fiduciary is

likely to have a number of bad ones. If the fiduciary

makes a poor choice because of a failure of process, a

failure of judgment, or both, Congress plainly

intended that affected plan participants be able to

recover losses or obtain other appropriate relief. The

Ninth Circuit’s rule erects a barrier to such suits,

even if the investment is recklessly imprudent and

causes large losses, so long as there is no sufficiently

similar investment that the participants can point to

that did better. This is inconsistent with ERISA’s text

and purposes and with ordinary pleading standards.

This Court should therefore reject the Ninth Circuit’s

rule.

-28CONCLUSION

The Court should reverse the judgment of the

Ninth Circuit and remand the case for further

consideration.

Respectfully submitted,

Elizabeth Hopkins

Counsel of Record

HOPKINS ERISA LAW

12123 Laurel Terrace Drive

Studio City, CA 9104

301-938-7516

hopkinserisalaw@outlook.com

Counsel for Amici Curiae

4934-9444-8038, v. 1