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, CHRISTOPHER M. SULYMA,

ON BEHALF OF ALL THOSE SIMILARLY SITUATED,

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 INVESTMENT LAW SCHOLARS

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

April 30, 2026

DAVID C. FREDERICK

DEREK C. REINBOLD

Counsel of Record

JARROD A. NAGURKA

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dreinbold@kellogghansen.com)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

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

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

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

I. The Shift To Opaque And Bespoke

Investment Vehicles Has Made ERISA’s

Duty Of Prudence More Important Yet

Harder To Police .............................................. 5

A. The Move From Defined-Benefit

To Defined-Contribution Plans Has

Shifted Investment Risk To Individual

Workers ....................................................... 6

B. The Displacement Of Mutual Funds

By Collective Investment Trusts And

Other Vehicles Has Reduced Transparency And Public Disclosure ................... 9

C. As Plans Add Less Standardized

Assets,

Meaningful

Comparison

Becomes Harder ........................................ 13

II. A “Meaningful Benchmark” Requirement

Would Immunize The Least Transparent

Investments From Judicial Review ............... 16

A. The Information Needed To Construct A “Meaningful Benchmark”

Rarely Is Available Before Discovery....... 17

B. A Strict Benchmarking Rule Is Inconsistent With This Court’s Precedents

And ERISA’s Remedial Design ................ 20

CONCLUSION.......................................................... 23

ii

TABLE OF AUTHORITIES

Page

CASES

Allen v. GreatBanc Tr. Co., 835 F.3d 670

(7th Cir. 2016)...................................................... 19

Anderson v. Southwest Airlines Co., 2026 WL

820860 (N.D. Tex. Mar. 25, 2026) ....................... 18

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ... 6, 21

Boggs v. Boggs, 520 U.S. 833 (1997) ........................ 20

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585

(8th Cir. 2009)...................................................... 19

Central States, Se. & Sw. Areas Pension Fund

v. Central Transp., Inc., 472 U.S. 559 (1985) ...... 17

Cunningham v. Cornell Univ., 604 U.S. 693

(2025) ................................................................... 20

Fifth Third Bancorp v. Dudenhoeffer, 573 U.S.

409 (2014) .................................................4, 5, 8, 20

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101 (1989) ............................................................ 20

Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312

(2016) ................................................................... 20

Hill v. McDonough, 547 U.S. 573 (2006).................. 21

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

(2022) ........................................................4, 7, 8, 20

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

(1999) ..................................................................... 7

John Hancock Mut. Life Ins. Co. v. Harris Tr. &

Sav. Bank, 510 U.S. 86 (1993) ............................ 22

iii

Johnson v. Parker-Hannifin Corp., 122 F.4th

205 (6th Cir. 2024), cert. petition pending,

No. 24-1030 .......................................................... 21

Jones v. Bock, 549 U.S. 199 (2007) ........................... 21

Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163 (1993) ............. 21

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

473 U.S. 134 (1985) ............................................... 5

Mator v. Wesco Distrib., Inc., 2022 WL 1046439

(W.D. Pa. Apr. 7, 2022) ........................................ 18

Meiners v. Wells Fargo & Co., 898 F.3d 820

(8th Cir. 2018).................................................18, 19

NLRB v. Amax Coal Co., 453 U.S. 322 (1981) ......... 21

Smith v. CommonSpirit Health, 37 F.4th 1160

(6th Cir. 2022)...................................................... 10

Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002) ................................................................... 21

Tibble v. Edison Int’l, 575 U.S. 523 (2015) ...3, 7, 8, 17

STATUTES AND REGULATIONS

Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1001 et seq. ..... 3, 4, 5, 6, 8, 9, 10,

12, 17, 20, 21, 22, 23

29 U.S.C. § 1001(b) ...................................4, 5, 9, 23

29 U.S.C. § 1002(34) .............................................. 8

29 U.S.C. § 1104(a)(1)(B) ....................................... 5

29 U.S.C. § 1110(a) .............................................. 22

Investment Company Act of 1940, 15 U.S.C.

§ 80a-1 et seq. ....................................................... 11

iv

Securities Act of 1933, 15 U.S.C. § 77a et seq. ........ 11

26 U.S.C. § 401(k) ................................................... 3, 5

42 U.S.C. § 1983 ........................................................ 21

29 C.F.R. § 2550.404a-5(a)........................................ 12

ADMINISTRATIVE MATERIALS*

U.S. Dep’t of Lab.:

Bureau of Lab. Statistics, Employee Benefits

in the United States Summary (Sept. 25,

2025), https://perma.cc/E285-PF6C ...................... 7

Emp. Benefits Sec. Admin. Off. of Enforcement, Field Assistance Bull. No. 2026-01,

Guiding Principles for EBSA Enforcement

Priorities (Apr. 14, 2026), https://perma.cc/

M52F-WA8P .......................................................... 9

What You Should Know About Your Retirement Plan (Sept. 2021), https://www.dol.

gov/sites/dolgov/files/ebsa/about-ebsa/ouractivities/resource-center/publications/whatyou-should-know-about-your-retirementplan.pdf ............................................................... 7-8

U.S. Gov’t Accountability Off., GAO-24-105364,

401(k) Retirement Plans: Department of

Labor Should Update Guidance on Target

Date Funds (Mar. 2024) .................................11, 22

* Hyperlinks are reproduced in the Table of Authorities, not

the body of the brief.

v

OTHER MATERIALS

60 Minutes: Retirement Dreams Disappear

With 401(k)s (CBS News, aired Apr. 17,

2009)....................................................................... 8

James An, Private Equity in Retirement Savings (rev. Apr. 27, 2026), https://papers.ssrn.

com/sol3/papers.cfm?abstract_id=5549704 ...14, 18

Bogert’s The Law of Trusts and Trustees (2025)...... 17

CITs Open Door for Inclusion of Private Markets in DC Plans, Cerulli Assocs. (Nov. 18,

2025)..................................................................... 14

William W. Clayton & Elizabeth de Fontenay,

Private Equity for All: The Paradoxical

Push to Democratize Private Markets, ECGI

Working Paper Series, No. 898 (Feb. 2026)

(forthcoming in Duke L.J. (2026)) ....................... 14

Elizabeth de Fontenay & Yaron Nili, Side

Letter Governance, 100 Wash. U.L. Rev. 904

(2023) ................................................................... 15

Thomas P. Lemke et al., Hedge Funds

and Other Private Funds: Regulation and

Compliance (2025) ............................................... 15

Brendan S. Maher, Regulating EmploymentBased Anything, 100 Minn. L. Rev. 1257

(2016) ..................................................................... 5

Jamie McAllister, Callan 2024 DC Trends

Survey: Focus on Plan Governance, and

Continued Efforts to Rein in Fees, Callan

Inst. (Apr. 24, 2024), https://www.callan.com/

blog/2024-dc-survey/ ............................................ 10

vi

Morgan Stanley, Collective Investment Trusts:

Potential Benefits To You And Your Employees (Mar. 2025), https://advisor.morgan

stanley.com/todd.gutkin/documents/field/t/

to/todd-gutkin/Collective_Investment_

Trusts_-_CIT_Brochure.pdf ................................ 11

Dana M. Muir, An Agency Costs Theory of

Employee Benefit Plan Law, 43 Berkeley J.

Emp. & Lab. L. 361 (2022) .................................... 9

Dana Muir & Norman Stein, Two Hats, One

Head, No Heart: The Anatomy of the ERISA

Settlor/Fiduciary Distinction, 93 N.C. L.

Rev. 459 (2015) .................................................... 21

Leslie Picker, Blue Owl Caps Private Credit

Funds Redemptions at 5% After Steep

Request Levels, CNBC (Apr. 2, 2026) .................. 15

Press Release, Goldman Sachs to Launch

Private Credit Collective Investment Trust

for the Defined Contribution Market (July

21, 2025) ............................................................... 14

Restatement (Third) of Trusts (2007) ...................... 17

Mahi Roy, 2026 Target-Date Fund Landscape,

Morningstar (Mar. 2026), https://perma.cc/

8TVQ-Q5K3 ....................................................10, 11

Davide Scigliuzzo & Ellen Schneider, Apollo,

KKR See Record-Wide Gap on Valuing

Stressed Private Loan, Bloomberg Law

(Nov. 13, 2025) ..................................................... 14

Natalya Shnitser:

Overtaking Mutual Funds: The Hidden Rise

and Risk of Collective Investment Trusts,

134 Yale L.J. 1620 (2025) ..............................7, 8, 9,

10, 11, 13, 15

vii

Trusts No More: Rethinking the Regulation

of Retirement Savings in the United States,

2016 BYU L. Rev. 629 ........................................... 8

T. Rowe Price Trust Co., The Advantages of

T. Rowe Price Collective Investment Trusts

(2025), https://perma.cc/YK74-X5MA ................. 12

Isaac Taylor, Carlyle Private-Credit Fund Hit

With Redemption Requests Totaling 15.7%,

Wall St. J. (Apr. 9, 2026) ..................................... 15

John J. Topoleski et al., Cong. Rsch. Serv.,

R43439, Worker Participation in EmployerSponsored Pensions: Data in Brief and

Recent Trends (updated Sept. 18, 2024) .............. 5

Andrew F. Tuch, The Remaking of Wall Street,

7 Harv. Bus. L. Rev. 315 (2017) .......................... 15

Lauren K. Valastro, How Misapplying

Twombly Erodes Retirement Funds, 32 Geo.

Mason L. Rev. 421 (2025) ..............................6, 8, 9,

13, 17, 18, 19

Peter J. Wiedenbeck, Untrustworthy: ERISA’s

Eroded Fiduciary Law, 59 Wm. & Mary L.

Rev. 1007 (2018) .............................................. 9, 22

Peter J. Wiedenbeck et al., Invisible Pension

Investments, 32 Va. Tax Rev. 591 (2013) ......... 6, 9,

12, 22

INTEREST OF AMICI CURIAE 1

Amici are 20 professors of law and business who

teach, research, and write about investments and

investment advice, including in the context of retirement plans. Amici have a substantial interest in

this case because their scholarship examines the

investment vehicles increasingly used in definedcontribution retirement plans and the legal framework that governs fiduciary oversight of those vehicles. The pleading standard this Court adopts will

shape whether that oversight remains meaningful.

Amici include:

James An, Assistant Professor of Law, Suffolk

University Law School

Sean M. Anderson, Teaching Professor, University

of Illinois College of Law

William W. Clayton, Professor of Law, BYU Law

School

Quinn Curtis, Professor of Law, University of Virginia School of Law

Elisabeth de Fontenay, Karl W. Leo Distinguished

Professor, Duke University School of Law

Renée M. Jones, Professor of Law and Dr. Thomas

F. Carney Distinguished Scholar, Boston College Law

School

Patricia A. McCoy, Professor of Law, Boston College

Law School

Dana Muir, Robert L. Dixon Collegiate Professor of

Business, University of Michigan Stephen M. Ross

School of Business

1 No counsel for a party authored this brief in whole or part.

No person or entity other than amici or counsel made a monetary

contribution to the preparation or submission of this brief.

2

Maria O’Brien, Paul M. Siskind Research Scholar

and Professor of Law, Boston University School of

Law

Russell K. Osgood, Professor of Law, Washington

University in St. Louis

David Pratt, Jay and Ruth Caplin Distinguished

Professor of Law, Albany Law School

Samantha J. Prince, Associate Professor of Law,

Penn State Dickinson Law

Joel Seligman, Professor of Law and Dean Emeritus,

Washington University School of Law

Natalya Shnitser, Professor & Donohue Faculty

Fellow, Boston College Law School

Anna-Marie Tabor, Assistant Professor, University

of Massachusetts School of Law – Dartmouth

Andrew F. Tuch, Professor of Law, Washington

University in St. Louis

Anne M. Tucker, Robert Cotten Alston Chair in

Corporate Law, University of Georgia School of Law

Lauren K. Valastro, Frank McDonald Scholar in

Business Law and Assistant Professor of Law, Texas

Tech University School of Law

Peter Wiedenbeck, Joseph H. Zumbalen Professor

of the Law of Property, Washington University in

St. Louis

James A. Wooten, Professor of Law, University at

Buffalo School of Law, The State University of New

York

3

SUMMARY OF ARGUMENT

When Congress enacted the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1001 et seq.,

the typical retirement plan was a defined-benefit

pension plan: the employer promised a fixed monthly

payment and bore the investment risk of delivering it.

But in the decades since, that system has shifted to

defined-contribution plans—such as 401(k)s—in

which employees may elect to allocate some of their

earnings to fund their retirement. Employers may

choose to make contributions to those retirement

funds, but their financial obligation generally ends

once the contribution is made. In such a plan, workers

bear the investment risk, so their retirement security

rises or falls with the performance of the assets in

their individual accounts.

Those workers usually do not invest in an open

market. Instead, they choose from a menu of options

selected for them by fiduciaries—typically their

employer or its designee.

ERISA’s fiduciary duty of prudence is a principal

legal safeguard ensuring that the menu is soundly

constructed and responsibly maintained. See Tibble

v. Edison Int’l, 575 U.S. 523, 529 (2015). That

duty bears exceptional weight: Defined-contribution

accounts now hold nearly $15 trillion. For millions

of Americans, those investments—and the fiduciary

decisions that affect them—mark the difference

between retirement with financial security or without

it.

Because the duty of prudence now does so much of

ERISA’s protective work, the Court should review the

pleading rules that accompany it with a clear view of

the investment landscape in which that duty operates.

That landscape has changed. Where plans once

4

offered mutual funds, which must make many public

disclosures under the securities laws, they have increasingly turned to collective investment trusts and

other investment vehicles that are exempt from such

requirements. These new asset classes face fewer

restrictions on permissible investments and may hold

illiquid or alternative assets, including customized

allocations to private equity, hedge funds, and real

estate.

As investment vehicles become less transparent and

their allocations more bespoke, comparisons become

correspondingly more difficult. So a strict benchmarking requirement would stand as a barrier to many

plaintiffs with meritorious claims.

This Court’s precedents foreclose that result. The

Court has rejected rules that “make[ ] it impossible for

a plaintiff to state a duty-of-prudence claim.” Fifth

Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 425

(2014). ERISA demands a “careful, context-sensitive

scrutiny of a complaint’s allegations,” id., not “categorical” pleading requirements, Hughes v. Northwestern

Univ., 595 U.S. 170, 173 (2022), like a strict “meaningful benchmark” rule.

Such a rule is also incompatible with ERISA’s remedial design. Congress enacted ERISA to protect “the

interests of participants in employee benefit plans and

their beneficiaries,” in significant part “by providing

for appropriate remedies, sanctions, and ready access

to the Federal courts.” 29 U.S.C. § 1001(b). A pleading rule that shuts the courthouse door whenever

fiduciaries choose opaque or unconventional investment options would undermine that design—at great

cost to Americans’ retirement savings and security.

5

ARGUMENT

I. The Shift To Opaque And Bespoke Investment

Vehicles Has Made ERISA’s Duty Of Prudence

More Important Yet Harder To Police

ERISA aims to protect workers who participate in

employee benefit plans. 29 U.S.C. § 1001(b). Central

to that aim is the duty of prudence, which requires

plan fiduciaries to discharge their duties “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.” Id. § 1104(a)(1)(B). That provision “ ‘imposes a “prudent person” standard by which

to measure fiduciaries’ investment decisions and disposition of assets.’ ” Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 419 (2014) (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 143

n.10 (1985)).

The duty of prudence helps safeguard Americans’

retirements. Today, about half of all private-sector

workers participate in defined-contribution plans like

401(k)s. See John J. Topoleski et al., Cong. Rsch.

Serv., R43439, Worker Participation in EmployerSponsored Pensions: Data in Brief and Recent Trends

4 (updated Sept. 18, 2024). Those workers bear the

risk that their retirement investments will underperform. But typically they may invest only in the

choices selected for them by plan fiduciaries. So it

matters enormously that they are offered prudent

investment options. See Brendan S. Maher, Regulating Employment-Based Anything, 100 Minn. L. Rev.

1257, 1270 (2016). And it matters even more today,

as plans increasingly use opaque, bespoke investment

vehicles that may create risks that bear directly on

6

workers’ ability to understand, access, and protect

their retirement savings.

That new reality provides important context for this

Court in assessing whether to require a “meaningful

benchmark” at the pleading stage. Imprudence

focuses on process, not results. But plan participants

rarely have access to the details of fiduciary

decisionmaking—at least before discovery. So they

typically deploy other evidence to connect alleged

poor performance or excessive fees to fiduciary action,

and thus “nudge[ ]” those claims “across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). One such form of evidence

is a “benchmark”: a comparator fund with lower fees

or better returns than the challenged fund. If the

fiduciary could have chosen that comparator but did

not, a court may reasonably infer that the decisionmaking process fell short. But some lower courts have

converted those sometimes-helpful allegations into

a categorical requirement, enforcing a “meaningful

benchmark” pleading standard with “excruciating

precision.” Lauren K. Valastro, How Misapplying

Twombly Erodes Retirement Funds, 32 Geo. Mason L.

Rev. 421, 465 (2025). That rule often demands the impossible, shielding imprudent fiduciaries and barring

claims by the workers ERISA was enacted to protect.

A. The Move From Defined-Benefit To DefinedContribution Plans Has Shifted Investment

Risk To Individual Workers

1. In recent decades, there has been a “massive

exodus” from employer-guaranteed defined-benefit

pensions to defined-contribution plans. Peter J.

Wiedenbeck et al., Invisible Pension Investments, 32

Va. Tax Rev. 591, 668 (2013). The traditional definedbenefit pension—under which workers received a

7

fixed stream of payments, typically monthly for life—

has given way to the defined-contribution model.

See Natalya Shnitser, Overtaking Mutual Funds:

The Hidden Rise and Risk of Collective Investment

Trusts, 134 Yale L.J. 1620, 1641 (2025). In a definedcontribution plan, “participating employees maintain

individual investment accounts, which are funded by

pretax contributions from the employees’ salaries and,

where applicable, matching contributions from the

employer.” Hughes v. Northwestern Univ., 595 U.S.

170, 173 (2022).

The shift has been dramatic: as of March 2025,

70 percent of private-industry workers had access to

defined-contribution plans; only 14 percent had access

to defined-benefit plans. See U.S. Dep’t of Lab.,

Bureau of Lab. Statistics, Employee Benefits in the

United States Summary (Sept. 25, 2025).

That transition has shifted investment risk from

employers to workers. In a defined-benefit plan, the

employer promises a fixed benefit, “typically bears

the entire investment risk,” and “must cover any

underfunding as the result of a shortfall that may

occur from the plan’s investments.” Hughes Aircraft

Co. v. Jacobson, 525 U.S. 432, 439 (1999). In a

defined-contribution plan, by contrast, the performance of a participant’s “chosen investments, as well

as the deduction of any associated fees, determines the

amount of money the participant will have saved for

retirement.” Hughes, 595 U.S. at 173; see Tibble v.

Edison Int’l, 575 U.S. 523, 525 (2015) (“[P]articipants’

retirement benefits are limited to the value of their

own individual investment accounts, which is determined by the market performance of employee and

employer contributions, less expenses.”); see also U.S.

8

Dep’t of Lab., What You Should Know About Your

Retirement Plan 3 (Sept. 2021); 29 U.S.C. § 1002(34).

So today, the consequences of imprudent investment

options in plans fall directly on workers. When

retirement investments underperform, workers may

delay retirement, exhaust their savings prematurely,

or never retire at all. See Valastro, Misapplying

Twombly, 32 Geo. Mason L. Rev. at 429; 60 Minutes:

Retirement Dreams Disappear With 401(k)s (CBS News,

aired Apr. 17, 2009) (profiling Americans forced to

remain in or return to the workforce after retirement

funds “evaporated” following economic downturn).

One important way that ERISA protects workers

from these dire consequences is by having employers

select and maintain a menu of prudent investment

options. Participants “may choose only from the

menu of options selected by the plan administrators.”

Hughes, 595 U.S. at 173. While participants may

select freely among the options the fiduciary has

assembled, see Dudenhoeffer, 573 U.S. at 412, they

usually cannot go off-menu, see Shnitser, Overtaking

Mutual Funds, 134 Yale L.J. at 1642.

2. ERISA’s fiduciary regime polices that asymmetry. One of the most important aspects of a plan

fiduciary’s obligations is the duty to exercise prudence

in selecting, monitoring, and managing plan investment options. See Tibble, 575 U.S. at 529. That duty

is the principal legal protection workers have against

unsound retirement investment choices—and it bears

particular weight because there are “relatively fewer

substantive rules for defined contribution plans” than

for defined-benefit plans. Natalya Shnitser, Trusts

No More: Rethinking the Regulation of Retirement

Savings in the United States, 2016 BYU L. Rev. 629,

646. With the shift away from defined-benefit plans,

9

many of ERISA’s original substantive protections—

including those related to funding and insurance—

are no longer relevant, and the trust-based fiduciary

duty framework has assumed a correspondingly larger

role. See Dana M. Muir, An Agency Costs Theory

of Employee Benefit Plan Law, 43 Berkeley J. Emp.

& Lab. L. 361, 367-74 (2022); Peter J. Wiedenbeck,

Untrustworthy: ERISA’s Eroded Fiduciary Law,

59 Wm. & Mary L. Rev. 1007, 1012-23 (2018).

Private enforcement gives the duty of prudence its

practical force. ERISA promises plan beneficiaries

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

§ 1001(b), and ERISA litigation has played an

“important role” in “depress[ing] fees and protect[ing]

participants’ retirement savings.” Valastro, Misapplying Twombly, 32 Geo. Mason L. Rev. at 436.2

B. The Displacement Of Mutual Funds By

Collective Investment Trusts And Other

Vehicles Has Reduced Transparency And

Public Disclosure

1. Mutual funds have traditionally served as the

dominant investment vehicle in defined-contribution

plans. See Shnitser, Overtaking Mutual Funds, 134

Yale L.J. at 1628. They are subject to extensive

disclosure requirements under the federal securities

laws, including registration statements, prospectuses,

fee disclosures, and proxy voting records. See Wiedenbeck, Invisible Pension Investments, 32 Va. Tax Rev.

at 623-24.

2 That private enforcement is about to matter more still: the

Department of Labor recently announced that it would deprioritize enforcement of duty-of-prudence breaches. See U.S. Dep’t

of Lab., Emp. Benefits Sec. Admin. Off. of Enforcement, Field

Assistance Bull. No. 2026-01, Guiding Principles for EBSA

Enforcement Priorities (Apr. 14, 2026).

10

Those disclosures have been helpful for ERISA

plaintiffs bringing imprudence claims—particularly

claims based on excessive fees. Participants have

used other plans’ public filings to construct comparisons—that is, “benchmarks”—as evidence of their own

plan’s imprudence. See, e.g., Smith v. CommonSpirit

Health, 37 F.4th 1160, 1167 (6th Cir. 2022) (fund’s

comparative underperformance “may offer a building

block for a claim of imprudence”). But the transparency that allowed those comparisons is disappearing

as plan fiduciaries have increasingly turned to investment vehicles that are not subject to the same disclosure requirements. See Shnitser, Overtaking Mutual

Funds, 134 Yale L.J. at 1647.

The shift has been swift: In 2010, 67 percent of

target-date funds—the most popular default investment options in defined-contribution plans—used the

mutual fund investment vehicle; by 2023, only 28

percent did. See Jamie McAllister, Callan 2024 DC

Trends Survey: Focus on Plan Governance, and

Continued Efforts to Rein in Fees, Callan Inst. (Apr.

24, 2024). And from 2015 through 2025, more target

date mutual funds closed than launched. See Mahi

Roy, 2026 Target-Date Fund Landscape, Morningstar

12 (Mar. 2026).

2. Collective investment trusts have been the

primary destination for that migration. See Shnitser,

Overtaking Mutual Funds, 134 Yale L.J. at 1647. Like

mutual funds, CITs are pooled investment vehicles

that combine assets from eligible investors into a

single fund with a specific investment strategy. See

id. at 1624. But CITs operate under a different

regulatory regime, and their investments are less

restricted than mutual funds’. See id. at 1624-25.

11

The migration has been substantial. As of 2023,

CITs held approximately $7 trillion, including nearly

30 percent of assets in defined-contribution plans. See

id. at 1622. By 2024, more than half of all target-date

fund assets were held in CITs. See id. at 1646 n.126.

And last year alone, asset managers converted more

than $54 billion in target-date funds from mutual

funds to CITs, a 36 percent increase over the prior

year. See Roy, 2026 Landscape at 11.

CITs are exempt from the Investment Company Act

of 1940 and the Securities Act of 1933. They do not

file registration statements or prospectuses, are not

required to disclose fees publicly, and need not report

corporate voting records. See Shnitser, Overtaking

Mutual Funds, 134 Yale L.J. at 1624-26, 1653-56.

Those exemptions “greatly reduce[ ] the amount of

publicly accessible information about” CITs. Id. at

1656-57. Even fiduciaries who select CITs for plan

participants may struggle to evaluate them: in 2024,

the Government Accountability Office found that CIT

disclosures, unlike mutual fund prospectuses, arrive

in inconsistent formats that fiduciaries “may not

understand.” U.S. Gov’t Accountability Off., GAO-24105364, 401(k) Retirement Plans: Department of

Labor Should Update Guidance on Target Date Funds

51-52 (Mar. 2024).

The banks and trust companies that create CITs

acknowledge as much. Morgan Stanley markets that

CITs “are not subject to the extensive registration,

operational, disclosure, and reporting requirements of

federal and state securities laws.” Morgan Stanley,

Collective Investment Trusts: Potential Benefits To

You And Your Employees 1 (Mar. 2025). T. Rowe Price

similarly states that CITs have “fewer compliance

considerations” and “may be less transparent than

12

mutual funds.” T. Rowe Price Trust Co., The Advantages

of T. Rowe Price Collective Investment Trusts 1, 4

(2025). It also concedes that CITs “do not trade on

an exchange,” “daily prices aren’t publicly available,”

investment information “can be limited to an individual (or specific) trust’s inception,” and “performance

evaluations may be limited due to the lack of longterm data.” Id. at 4.

3. That is not to say CITs are black boxes. Plan

administrators must provide plan participants certain

basic information about the investment alternatives

in their plans. Those disclosures are meant to allow

participants “to make informed decisions with regard

to the management of their individual accounts.” 29

C.F.R. § 2550.404a-5(a). And ERISA requires periodic

reports to the Department of Labor. For example,

when CITs hold ERISA plan assets, they typically

qualify as “Direct Filing Entities” and must file Form

5500s with the Department of Labor, and the plans

that invest in them file simplified annual reports in

turn. See Wiedenbeck, Invisible Pension Investments,

32 Va. Tax Rev. at 605, 622, 696.

But those filings are a thin substitute for the

investor-facing disclosures the securities laws demand

of mutual funds. A plaintiff trying to piece together

what assets a CIT actually holds must first “link” the

Direct Filing Entity’s Form 5500 to the plan’s simplified report—a task that “poses serious challenges,”

“effectively rendering part of the plan’s financial position invisible.” Id. at 595, 606. And even when that

linkage is accomplished, because the Form 5500s and

simplified reports are annual snapshots taken at a

moment in time, the resulting filings still lack the

volatility, flow, and activity data that SEC disclosure

obligations would require. The result is that such

13

filings “do not include all the information a plaintiff

would need to satisfy the probability pleading requirements imposed by many courts.” Valastro, Misapplying Twombly, 32 Geo. Mason L. Rev. at 471.

C. As Plans Add Less Standardized Assets,

Meaningful Comparison Becomes Harder

The problem runs deeper than disclosure. CITs and

similar vehicles are bespoke—privately negotiated,

extensively customized, and varied in fee structure,

redemption terms, and underlying asset composition.

See Shnitser, Overtaking Mutual Funds, 134 Yale L.J.

at 1653. They may invest in private equity, private

credit, direct lending, hedge funds, and other assets

not typically found in mutual funds. See id. at 165253. Here, for example, the complaint alleges that

some Intel plans used CITs with significant allocations to hedge funds and private equity. See Am.

Compl. ¶¶ 5, 10, 12. Amici take no position on the

proper role of private-market investments in retirement plans—indeed, amici hold a variety of views on

that policy question. But amici agree that the bespoke

and illiquid character of these assets makes like-forlike comparison difficult—and thus makes a strict

benchmarking requirement all the more likely to bar

meritorious suits than to filter out deficient ones.

Even if plaintiffs can identify the holdings in the

CIT offered by their plan and the holdings in CITs

offered by other plans, the nature of CITs and similar

vehicles complicate comparison in at least three ways:

in how their assets are valued, in what redemption

rights they offer, and in how they are customized to

individual plans.

Valuation. A “meaningful benchmark” requirement assumes that the numbers being compared

14

measure the same thing in roughly the same way. For

private-market assets, that assumption often fails.

Public securities are ordinarily priced by reference

to observable market transactions. Private-market

assets typically are not. Their reported values often

depend on appraisals, models, or periodic judgments

about comparable transactions, borrower health, and

expected cash flows. See James An, Private Equity

in Retirement Savings 30-31 (rev. Apr. 27, 2026).

Because private-market prices are often updated only

periodically, reported returns may appear smoother

than the underlying economic exposure would suggest. See id. at 41; William W. Clayton & Elizabeth

de Fontenay, Private Equity for All: The Paradoxical

Push to Democratize Private Markets, ECGI Working

Paper Series, No. 898, at 44 (Feb. 2026) (forthcoming

in Duke L.J. (2026)).

Valuation gaps can be large. Two rival privatecredit funds3 reportedly valued the same loan 14

points apart—one at 77 cents on the dollar, the other

at 91. See Davide Scigliuzzo & Ellen Schneider,

Apollo, KKR See Record-Wide Gap on Valuing

Stressed Private Loan, Bloomberg Law (Nov. 13,

2025). So a plaintiff asked to plead a “meaningful

benchmark” must compare performance figures that

may rest on different methods, assumptions, and

valuation dates.

3 Private credit—essentially loans issued outside the traditional banking system—is increasingly part of the mix of investments included in CITs. See Press Release, Goldman Sachs to

Launch Private Credit Collective Investment Trust for the Defined

Contribution Market (July 21, 2025); CITs Open Door for Inclusion of Private Markets in DC Plans, Cerulli Assocs. (Nov. 18,

2025).

15

Liquidity. A meaningful-benchmark requirement

also assumes that similar-seeming funds permit

access to capital on similar terms. That assumption

breaks down for funds that hold alternative investments.

For alternative investments, the terms of liquidity

may differ significantly among different vehicles.

Such investments may contractually limit withdrawals to specified intervals, cap repurchases, impose

gates (temporary suspensions on redemptions), or

otherwise restrict redemptions.4 See Elizabeth de

Fontenay & Yaron Nili, Side Letter Governance, 100

Wash. U.L. Rev. 904, 924 (2023); Thomas P. Lemke

et al., Hedge Funds and Other Private Funds: Regulation and Compliance § 5:22 (2025); Andrew F. Tuch,

The Remaking of Wall Street, 7 Harv. Bus. L. Rev. 315,

354 (2017). Because courts have identified liquidity

terms as a basis on which to distinguish plan assets,

a strict “meaningful benchmark” requirement could

allow obscure or unique redemption restrictions to

insulate a fiduciary from accountability.

Customization. CITs and similar vehicles are

often customized. Allocations, leverage, fees, and

liquidity terms may be tailored to a specific plan. See

Shnitser, Overtaking Mutual Funds, 134 Yale L.J. at

1653. That flexibility further reduces the chance that

a participant can identify an adequate benchmark.

4 In 2026, several private-credit funds received redemption

requests far above that limit—from roughly 16 percent to more

than 40 percent of shares—yet capped withdrawals at 5 percent.

See Isaac Taylor, Carlyle Private-Credit Fund Hit With Redemption Requests Totaling 15.7%, Wall St. J. (Apr. 9, 2026); Leslie

Picker, Blue Owl Caps Private Credit Funds Redemptions at 5%

After Steep Request Levels, CNBC (Apr. 2, 2026).

16

These features make pre-discovery comparison

materially harder. A plaintiff asked to plead a “meaningful benchmark” must identify not just a fund with

similar objectives and returns, but one with similar

valuation frequency, liquidity rights, and customizations—not to mention other features like time horizon,

complexity, and leverage. Yet those terms are often

set out in private fund documents or bespoke agreements unavailable before discovery.

When a plan uses customized vehicles with nontraditional exposures, participants may have good

reason to plausibly infer imprudence yet lack the

information needed to identify, before discovery, a

comparator a court would deem sufficiently “meaningful.” That reality cuts against any categorical benchmark rule. Such a rule would make the duty of

prudence hardest to enforce precisely where plans are

least transparent and most bespoke. The law should

not convert that practical obstacle into immunity from

review.

II. A “Meaningful Benchmark” Requirement

Would Immunize The Least Transparent

Investments From Judicial Review

A judicially imposed meaningful-benchmark pleading requirement would foreclose scrutiny based on

form, not substance. No matter how diligent the

plaintiff or how imprudent the fiduciary, a “meaningful benchmark” sometimes cannot be pleaded at

the outset—not because the claim lacks merit, but

because either the information needed to construct

one is unavailable or no comparable investment

exists. A rule that presupposes robust disclosures and

readily available comparators ignores the realities of

today’s retirement investment landscape. So impos-

17

ing such a rule would contradict this Court’s precedents, which require context-sensitive consideration

of imprudence claims, and ERISA’s remedial design,

which depends on private enforcement of fiduciary

duties.

A. The Information Needed To Construct

A “Meaningful Benchmark” Rarely Is

Available Before Discovery

1. This Court has “often noted that an ERISA

fiduciary’s duty is ‘derived from the common law of

trusts.’ ” Tibble, 575 U.S. at 528 (quoting Central

States, Se. & Sw. Areas Pension Fund v. Central

Transp., Inc., 472 U.S. 559, 570 (1985)). Under the

common law of trusts, courts ask whether a trustee

invested as a prudent investor would have, not how

the trust’s performance stacked up against comparators. See Restatement (Third) of Trusts § 90 (2007);

Bogert’s The Law of Trusts and Trustees § 862 (2025).

Put differently, the “standards of prudence in trust

investments are standards of conduct rather than of

performance or result.” Bogert’s The Law of Trusts

and Trustees § 612.

Certainly comparators have a place within that

framework. Comparators can be useful as one of

an array of potential circumstantial allegations of

imprudence. See App. 27a (Berzon, J., concurring).

For years, ERISA plaintiffs have used comparator

investments as circumstantial proof of imprudence. A

plaintiff who shows that her plan charged higher fees,

or delivered lower returns, than a readily available

alternative gives a court reason to infer a flawed

process. But some courts have turned that evidentiary tool into a requirement to plead a “meaningful

benchmark.” See Valastro, Misapplying Twombly,

32 Geo. Mason L. Rev. at 465.

18

2. Courts have not converged on what a “meaningful benchmark” requires. Anderson v. Southwest Airlines Co., 2026 WL 820860, at *3 (N.D. Tex. Mar. 25,

2026) (noting confusion about the doctrine). Initially

described as requiring “a sound basis for comparison,”

Meiners v. Wells Fargo & Co., 898 F.3d 820, 822 (8th

Cir. 2018), the lower court here required the comparison fund to “have similar aims, risks, and potential

rewards to a challenged fund,” App. 52a. Whatever

the definition, district courts have read the standard

to require “excruciating precision” at the pleading

stage. Valastro, Misapplying Twombly, 32 Geo.

Mason L. Rev. at 465; see also, e.g., App. 55a-61a

(“common benchmark[ ]” or “peer group category”

insufficient). Indeed, one district court found even

“apples-to-apples” comparisons insufficient because

“one could be a Honeycrisp and the other a Granny

Smith.” Mator v. Wesco Distrib., Inc., 2022 WL

1046439, at *6 (W.D. Pa. Apr. 7, 2022). By demanding

so much of the “meaningful benchmark” standard,

courts often leave challenged plans “standing in

leagues of their own, essentially immuniz[ed]” from

fiduciary challenge. An, Private Equity in Retirement

Savings 64-66.

A plaintiff pleading a “meaningful benchmark”

needs detailed information—about fees, performance,

risk profiles, and underlying holdings—not only

about the challenged investment but about potential

comparators as well. Historically, participants could

sometimes draw those comparisons from the public

disclosures that mutual funds must file. That was the

Eighth Circuit’s rationale in imposing the requirement: “missing factual allegations . . . about the funds

themselves” are facts “which ERISA plaintiffs can

19

research.” Meiners, 898 F.3d at 822. But that “misapprehend[s] the nature, effectiveness, and accessibility of the disclosure fiduciaries must give plan participants.” Valastro, Misapplying Twombly, 32 Geo.

Mason L. Rev. at 471.

In practice, “specific details . . . are rarely in plaintiffs’ possession at the filing stage.” Id. at 427. Plan

participants do not have pre-discovery access to the

fiduciary’s decision-making process, the terms of

bespoke trust agreements, or the detailed holdings

of opaque vehicles—including the comparator investments on which benchmarking depends. Put another

way, before discovery, plaintiffs have little way of

“obtaining information defendants keep secret.” Id. at

468. Some lower courts have recognized as much. See,

e.g., Allen v. GreatBanc Tr. Co., 835 F.3d 670, 678 (7th

Cir. 2016) (“ ‘ERISA plaintiffs generally lack the inside

information necessary to make out their claims in

detail unless and until discovery commences.’ ”) (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598

(8th Cir. 2009)). It therefore “would be perverse to

require plaintiffs . . . to plead facts that remain in the

sole control of the parties who stand accused of wrongdoing.” Braden, 588 F.3d at 602.

The shift to alternative investment vehicles has

made this problem—a requirement to allege unavailable facts—vastly worse. CITs and similar vehicles

are not subject to mutual funds’ disclosure requirements. See supra pp. 9-13. And their bespoke nature

means that courts have “overwhelmingly” found them

“too dissimilar from other investment products to

allow meaningful comparisons.” Valastro, Misapplying Twombly, 32 Geo. Mason L. Rev. at 462. The

result is that the less a vehicle resembles a traditional

20

mutual fund, the harder it is to “meaningfully benchmark”—and the more effectively a benchmarking

requirement insulates it from challenge.

B. A Strict Benchmarking Rule Is Inconsistent

With This Court’s Precedents And ERISA’s

Remedial Design

“This Court has recognized that ‘the principal object

of ERISA is to protect plan participants and beneficiaries.’ ” Gobeille v. Liberty Mut. Ins. Co., 577 U.S.

312, 324 (2016) (quoting Boggs v. Boggs, 520 U.S. 833,

845 (1997)) (cleaned up). One way ERISA does so

is by “explicitly authoriz[ing] suits against fiduciaries

and plan administrators to remedy . . . breaches of

fiduciary duty.” Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 110 (1989). The statute imposes

context-dependent fiduciary duties to protect plan

participants, and this Court has rejected attempts

to graft additional requirements onto that framework.

A strict benchmarking requirement is irreconcilable

with those principles.

This Court’s precedents. The Court has rejected

pleading rules that “make[ ] it impossible for a

plaintiff to state a duty-of-prudence claim,” requiring

instead a “careful, context-sensitive scrutiny of a complaint’s allegations.” Dudenhoeffer, 573 U.S. at 425.

In Hughes, the Court reiterated that ERISA claims

call for a context-specific inquiry, not “categorical”

pleading requirements. 595 U.S. at 173. And just last

Term, in Cunningham v. Cornell University, the Court

reaffirmed that fiduciary duty suits are ERISA’s

primary enforcement mechanism—and again declined

to impose additional barriers to those suits. 604 U.S.

693, 696 (2025). A mandatory benchmarking rule is

precisely the kind of categorical requirement these

precedents foreclose.

21

Nothing in ERISA’s text requires plaintiffs to plead

a “meaningful benchmark” to state a claim for imprudence. See App. 27a (Berzon, J., concurring). And

while pleading a benchmark may sometimes help

“nudge[ ] the[ ] claims across the line from conceivable

to plausible,” Twombly, 550 U.S. at 570, nothing in

ERISA suggests that “a meaningful benchmark is . . .

required to plead a facially plausible claim of imprudence,” Johnson v. Parker-Hannifin Corp., 122 F.4th

205, 216 (6th Cir. 2024) (emphasis added), cert. petition pending, No. 24-1030. To hold otherwise would

“impermissibly appl[y] what amount[s] to a heightened pleading requirement . . . beyond those necessary to state” a claim. Twombly, 550 U.S. at 570. This

Court has declined to impose atextual, heightened

pleading requirements across a variety of statutory

contexts. See, e.g., Jones v. Bock, 549 U.S. 199, 203,

224 (2007) (prisoner litigation); Hill v. McDonough,

547 U.S. 573, 582 (2006) (42 U.S.C. § 1983); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514-15 (2002)

(employment discrimination); Leatherman v. Tarrant

Cnty. Narcotics Intel. & Coordination Unit, 507 U.S.

163, 168 (1993) (municipal liability). The result here

should be the same.

ERISA’s remedial design. A mandatory meaningfulbenchmark rule would undermine ERISA’s remedial

design by insulating even imprudent investments

from judicial review. Before ERISA, Congress had

tried a disclosure-only approach to pension regulation.

It did not work. See Dana Muir & Norman Stein,

Two Hats, One Head, No Heart: The Anatomy of the

ERISA Settlor/Fiduciary Distinction, 93 N.C. L. Rev.

459, 469-70, 473 (2015). So Congress enacted ERISA,

imposing trust-law-based duties on plan fiduciaries.

See NLRB v. Amax Coal Co., 453 U.S. 322, 332 (1981)

22

(discussing ERISA’s codification of “strict fiduciary

standards”).

A benchmarking rule that makes fiduciary enforcement contingent on the adequacy of disclosure would

reopen the void that Congress meant to close. As

noted above, CIT disclosures arrive in inconsistent

formats that even plan sponsors may not understand,

see supra p. 11 (discussing GAO-24-105364, at 51-52);

daily prices “aren’t publicly available,” see supra pp.

11-12 (quoting T. Rowe Price); and researchers have

found it challenging to match the available filings

comprehensively to the plans that invest through

them, see supra pp. 12-13 (discussing Wiedenbeck,

Invisible Pension Investments, 32 Va. Tax Rev. at 59394 & n.4). In that environment, conditioning fiduciary

accountability on disclosure will often condition it out

of existence.

“ERISA’s broadly protective purposes,” John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510

U.S. 86, 96 (1993), “imposed broadly applicable uncompromising obligations” on fiduciaries, Wiedenbeck, Untrustworthy, 59 Wm. & Mary L. Rev. at 1015.

Congress took those obligations so seriously that it

barred even private agreements that would dilute

them: exculpatory clauses purporting to relieve a

fiduciary of liability are “void as against public policy.”

29 U.S.C. § 1110(a). If Congress prohibited parties

from adopting contract terms that erode ERISA’s

fiduciary protections, courts should not accomplish

the same result by adopting a heightened pleading

standard.

*

*

*

23

Congress enacted ERISA to provide plan participants “ready access to the Federal courts.” 29 U.S.C.

§ 1001(b). A pleading standard that rewards opacity

with immunity provides the opposite.

CONCLUSION

The court of appeals’ judgment should be reversed.

Respectfully submitted,

April 30, 2026

DAVID C. FREDERICK

DEREK C. REINBOLD

Counsel of Record

JARROD A. NAGURKA

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dreinbold@kellogghansen.com)