Prudence in Transition: Anderson v. Intel Corp. and the Future of Alternative Investments in Defined Contribution Plans

by Nathan Steineker, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

On March 31, 2026, the U.S. Department of Labor (“DOL”) published a Proposed Rule that would enable the incorporation of alternative assets into designated investment alternatives (“DIAs”) offered in participant-directed defined contribution plans (“DC Plans”), like 401(k)s.¹ Under the Proposed Rule, alternative assets include private equity, real estate investments, and actively managed funds that invest in digital assets such as cryptocurrency.² The Proposed Rule was issued pursuant to President Trump’s recent Executive Order 14330, titled “Democratizing Access to Alternative Assets for 401(k) Investors.”³ The Executive Order highlights that, although alternative assets are commonly available to wealthy investors and public pension participants, most Americans who have DC plans lack access to alternative assets due to fiduciary caution, regulatory barriers, and litigation risk.⁴ To address these barriers, the Trump Administration seeks to expand investment opportunities and improve retirement outcomes by providing clearer guidance and reducing legal uncertainty.⁵ This Proposed Rule also coincides with the Supreme Court’s recent grant of certiorari in Anderson v. Intel Corp., a case that may shape the standard governing fiduciaries’ selection of alternative investments within DC plans.⁶

This Article examines the potential impact of Anderson and the DOL’s Proposed Rule on the market for alternative assets in DC plans. Part II provides background on Anderson, the federal circuit split over the “meaningful benchmark” standard, and the contours of the Proposed Rule. Part III analyzes the possible interaction between Anderson and the Proposed Rule and how fiduciaries may adjust their investment practices in response. Part IV concludes by considering how the decision in Anderson and the Proposed Rule, together, may shape the future of alternative investments in DC plans.

II. Background

Part A of this Section provides background on Anderson and its central issue. Part B discusses the emerging circuit split over the “meaningful benchmark” standard for imprudent investment claims. Part C summarizes the DOL’s Proposed Rule.

A. Anderson v. Intel Corp.

Anderson involves a former intel employee who brought a putative class action under the Employee Retirement Income Security Act of 1974 (“ERISA”) against the trustees of Intel Corporation’s proprietary retirement funds.⁷ Anderson alleged that the trustees breached their fiduciary duties of prudence and loyalty.⁸ Specifically, he claimed that the trustees imprudently invested in hedge funds and private equity funds, which allegedly departed from prevailing standards of professional asset managers, and that they breached their duty of loyalty by steering retirement funds to companies in which Intel’s venture capital arm, Intel Capital, had already invested.⁹

Anderson participated in Intel’s employee retirement plans, which are subject to ERISA.¹⁰ ERISA imposes fiduciary duties on plan trustees, including the duty of prudence, which requires acting with care, skill, and diligence, and the duty of loyalty, which requires acting solely in the interest of participants and beneficiaries.¹¹ Intel redesigned its funds after the 2008 market crash to include hedge funds and private equity funds, aiming to decrease volatility and reduce the risk of large losses during market downturns.¹² Anderson alleged that these investments led to underperformance compared to peer funds and incurred higher fees.¹³ He also claimed that the investments favored Intel Capital at the expense of plan participants.¹⁴

The district court dismissed Anderson’s claims for failure to state a claim, reasoning that he did not provide a “meaningful benchmark” to compare Intel’s funds and failed to plausibly allege a conflict of interest or self-dealing.¹⁵ Anderson amended his complaint, but the district court again dismissed it with prejudice, concluding that he still had not identified a meaningful benchmark and that his duty-of-loyalty allegations were insufficient.¹⁶ The Ninth Circuit Court of Appeals affirmed the district court’s dismissal in its May 22, 2025 decision.¹⁷ The court held that Anderson did not plausibly allege that Intel’s funds underperformed other funds with comparable aims.¹⁸ The court emphasized that ERISA requires prudence, not prescience, and that a fiduciary’s actions are assessed based on information available at the time of the investment decision.¹⁹ Anderson then appealed the Ninth Circuit’s decision, and the Supreme Court granted certiorari on January 16, 2026.²⁰

B. The Split Over The “Meaningful Benchmark” Standard

On appeal, the Supreme Court in Anderson must decide whether a plaintiff with claims based on underperformance must allege a “meaningful benchmark” to plausibly show that an ERISA fiduciary breached the duty of prudence in managing plan assets.²¹ The Ninth Circuit’s decision held that “when a plaintiff alleges imprudence based on a fiduciary’s decision to make one investment rather than an alternative, ‘the key to nudging an inference of imprudence from possible to plausible is providing a sound basis for comparison—a meaningful benchmark—not just alleging that ‘costs are too high, or returns are too low.’”²² In the Ninth Circuit’s eyes, the sound basis for comparison is “a relevant comparator with similar objectives – not just a better performing plan or investment.”²³ Such need for a comparator was “implicit in ERISA’s text … [b]y making the standard of care that of a hypothetical person ‘acting in a like capacity … in the conduct of an enterprise of a like character and with like aims.’”²⁴[/mfn]

The “meaningful benchmark” standard traces back to the Eighth Circuit, which first articulated its approach in Meiners v. Wells Fargo Co.²⁵ There, the court held that “[t]o show that ‘a prudent fiduciary in like circumstances’ would have selected a different fund based on the cost or performance of the selected fund, a plaintiff must provide a sound basis for comparison—a meaningful benchmark.”²⁶ The Third Circuit soon adopted a similar foundation in Sweda v. Univ. of Pennsylvania,²⁷ followed by the Seventh Circuit in Albert v. Oshkosh Corp.²⁸ The Tenth Circuit likewise embraced the Eighth Circuit’s approach in Matney v. Barrick Gold.²⁹

However, not all circuits agree with the Ninth Circuit’s holding in Anderson. Most recently, the Sixth Circuit in Johnson v. Parker-Hannifin Corp. held that a meaningful benchmark “may offer a building block” and “will often be necessary,” but it is not always required to bring a claim of imprudence.³⁰ In the Sixth Circuit’s view, the focus of an imprudence claim is on the administrator’s real-time decision-making, not on how a particular investment ultimately performed.³¹ In other words, “even if a poorly chosen fund happens to perform well, the administrator would still have acted imprudently.”³² The Supreme Court will likely resolve this emerging split in Anderson.

C. The DOL’s Proposed Rule

The DOL’s Proposed Rule on fiduciary duties in selecting designated investment alternatives seeks to clarify and operationalize the duty of prudence under ERISA through a process-based framework accompanied by a safe harbor.³³ At its core, the Proposed Rule emphasizes that prudence is defined by the fiduciary’s decision-making process rather than investment outcomes, reaffirming that fiduciaries retain broad discretion to select investment options, including alternative assets, so long as they engage in an objective, thorough, and analytical evaluation of relevant factors.³⁴ The proposal is designed to reduce regulatory uncertainty and litigation risk, which Executive Order 14330 identified as discouraging fiduciaries from offering diversified or innovative investment options that could enhance participants’ risk-adjusted returns.³⁵

To that end, the Proposed Rule introduces a non-exhaustive safe harbor that, if followed, provides fiduciaries with greater assurance that their decisions will satisfy ERISA’s prudence requirement.³⁶ This safe harbor centers on six key factors that fiduciaries must evaluate when selecting investment alternatives: performance, relative fees, sufficient liquidity, valuation, benchmarking, and complexity.³⁷ By requiring fiduciaries to consider these factors in a structured and well-documented manner, the rule both supplements the DOL’s 1979 Investment Duties Regulation and clarifies what it means to “act accordingly” after assessing relevant circumstances.³⁸ The Proposed Rule further underscores that no category of investment is per se prudent or imprudent, reinforcing ERISA’s asset-neutral approach and permitting fiduciaries to consider a broad range of investment vehicles, including those involving alternative assets, provided the selection process is sound.³⁹

Additionally, the Proposed Rule highlights that fiduciary prudence applies not only to individual investment selections but also to the overall construction of a plan’s investment menu, which should be designed to maximize risk-adjusted returns net of fees across participants’ portfolios.⁴⁰ Although the Proposed Rule does not directly regulate ongoing monitoring obligations, it acknowledges that similar process-based principles govern fiduciaries’ continuing duty to review and remove imprudent options.⁴¹ Ultimately, the Proposed Rule aims to strike a balance between participant protection and fiduciary flexibility by promoting disciplined decision-making while affording deference to fiduciaries who follow a prudent process, thereby expanding access to a wider array of investment opportunities and improving retirement outcomes.

III. Discussion

The pending decision in Anderson and the DOL’s Proposed Rule are poised to reshape, in tandem, the legal and practical framework governing fiduciary selection of alternative investments in DC plans. At their core, both developments center on a common question: how courts and regulators should evaluate fiduciary “prudence” under ERISA when investment decisions involve complex, higher-cost, and potentially less transparent assets.⁴² Yet they approach that question from different directions – Anderson through the lens of pleading standards in fiduciary-breach litigation, and the Proposed Rule through ex ante regulatory guidance designed to channel fiduciary conduct.⁴³

The most immediate point of intersection lies in the role of benchmarking. The circuit split presented in Anderson reflects a fundamental disagreement over whether plaintiffs must identify a “meaningful benchmark” to plausibly allege imprudence based on underperformance.⁴⁴ Circuits adopting the benchmark requirement effectively impose a comparative screen at the pleading stage, requiring plaintiffs to demonstrate that the challenged investment is inferior to a sufficiently similar alternative.⁴⁵ By contrast, the Sixth Circuit’s more flexible approach allows claims to proceed based on allegations about flawed decision-making processes, even absent a precise comparator.⁴⁶

The Proposed Rule both complements and complicates this debate. On the one hand, it explicitly incorporates “benchmarking” as one of several factors fiduciaries should consider when selecting designated investment alternatives.⁴⁷ This inclusion may be read as implicitly endorsing the relevance of comparative analysis in assessing prudence. If the Supreme Court affirms the Ninth Circuit’s approach in Anderson, the Proposed Rule’s emphasis on benchmarking would reinforce a legal regime in which both fiduciaries and plaintiffs must ground their arguments in careful, similar comparisons. In that scenario, fiduciaries would likely respond by developing more robust benchmarking methodologies – particularly for alternative assets, where traditional market indices may be ill-suited – and by documenting those comparisons to avail themselves of the rule’s safe harbor.⁴⁸

On the other hand, the Proposed Rule does not elevate benchmarking above other considerations, nor does it make it dispositive.⁴⁹ Instead, benchmarking is one of several factors that collectively inform a prudent process.⁵⁰ This multi-factor, process-oriented framework aligns more closely with the Sixth Circuit’s reasoning in Johnson v. Parker-Hannifin Corp., which emphasizes that prudence turns on the quality of the fiduciary’s decision-making at the time of the investment, rather than solely on comparative outcomes.⁵¹ If the Supreme Court adopts this more flexible standard in Anderson, the Proposed Rule will provide a ready-made doctrinal scaffold: courts could evaluate fiduciary conduct holistically, with benchmarking serving as a useful but nonessential evidentiary tool.

Beyond benchmarking, Anderson and the Proposed Rule jointly signal a broader shift towards process-based adjudication in ERISA litigation.⁵² The Ninth Circuit’s insistence that ERISA requires “prudence, not prescience” echoes the Proposed Rule’s central premise that fiduciary duties are defined by the rigor of the decision-making process rather than investment results.⁵³ This convergence suggests that, regardless of how the Supreme Court resolves the benchmark question, courts may increasingly focus on whether fiduciaries engage in a reasoned, well-documented evaluation of relevant factors. In practice, this shift could raise the bar for plaintiffs, who may need to plead not only inferior performance but also specific deficiencies in the fiduciary’s deliberative process.⁵⁴

At the same time, the Proposed Rule’s safe harbor may significantly recalibrate litigation risk.⁵⁵ By identifying discrete factors that, if considered and documented, provide greater assurance of compliance, the Proposed Rule offers fiduciaries a roadmap for insulating their decisions from judicial second-guessing.⁵⁶ If courts treat adherence to the safe harbor as strong evidence of prudence, fiduciaries may be more willing to include alternative assets in plan menus, confident that a disciplined process will mitigate exposure to liability.⁵⁷ Conversely, plaintiffs may face heightened challenges in overcoming motions to dismiss or summary judgment where fiduciaries can demonstrate compliance with the Proposed Rule’s framework.⁵⁸

The implications for alternative investments are particularly significant. Historically, fiduciaries have been reluctant to include private equity, hedge funds, and digital asset-related investments in DC plans due to concerns about fees, liquidity constraints, valuation difficulties, and litigation risk.⁵⁹ The Proposed Rule directly addresses these concerns by clarifying that no asset class is per se imprudent and by providing structured guidance for evaluating such investments.⁶⁰ If Anderson results in a stringent benchmark requirement, however, fiduciaries may remain cautious, given the inherent difficulty of identifying appropriate comparators for illiquid or bespoke investment strategies. In contrast, a more flexible standard would better accommodate the unique characteristics of alternative assets, allowing fiduciaries to justify their inclusion based on a broader set of qualitative and quantitative considerations.

Finally, the interaction between Anderson and the Proposed Rule may influence not only fiduciary behavior but also market dynamics. Increased inclusion of alternative assets in DC plans could expand access to investment strategies historically reserved for institutional or high-net-worth investors, potentially improving diversification and long-term returns.⁶¹ At the same time, it may also introduce new risks, particularly for unsophisticated participants who may not fully understand the complexities of such investments.⁶² In this respect, the Proposed Rule’s emphasis on menu construction and risk-adjusted returns underscores the continuing importance of fiduciary judgment in balancing innovation with participant protection.⁶³

IV. Conclusion

In sum, Anderson and the Proposed Rule operate as complementary forces shaping the evolution of ERISA fiduciary law. Whether the Supreme Court adopts a rigid or flexible approach to benchmarking, the Proposed Rule’s process-based framework is likely to play a central role in guiding both fiduciary conduct and judicial review. Together, they may usher in a more nuanced and structured regime – one that both enables greater access to alternative investments and redefines the contours of prudence in an increasingly complex investment landscape.

Nathan Steineker

References

1
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. 16088 (Mar. 31, 2026).
2
Id. at 16092.
3
Democratizing Access to Alternative Assets for 401(k) Investors, 90 Fed. Reg. 38921 (Aug. 7, 2025).
4
Id.
5
Id.
6
Anderson v. Intel Corp., No. 25-498 (petition for cert. granted Jan. 16, 2026).
7
Anderson v. Intel Corp. Inv. Pol’y Comm., 137 F.4th 1015, 1019 (9th Cir. 2025), cert. granted sub nom. Anderson v. Intel Corp. Inv., No. 25-498, 2026 WL 120679 (U.S. Jan. 16, 2026).
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id. at 1020.
14
Id.
15
Id.
16
Id.
17
Id. at 1027.
18
Id. at 1025.
19
Id. at 1021.
20
Anderson v. Intel Corp., No. 25-498 (petition for cert. granted Jan. 16, 2026).
21
Petition for Writ of Certiorari at 1, Anderson v. Intel Corp., No. 25-498 (petition for cert. granted Jan. 16, 2026).
22
Anderson, 137 F.4th at 1022 (9th Cir. 2025).
23
Id.
24
²⁴Id.
25
Meiners v. Wells Fargo & Co., 898 F.3d 820 (8th Cir. 2018).
26
Id. at 822.
27
Sweda v. Univ. of Pennsylvania, 923 F.3d 320, 330 (3d Cir. 2019) (“[A] fiduciary breach claim must be examined against the backdrop of the mix and range of available investment options. We did not hold, however, that a meaningful mix and range of investment options insulates plan fiduciaries from liability for breach of fiduciary duty.”).
28
Albert v. Oshkosh Corp., 47 F.4th 570, 581 (7th Cir. 2022).
29
Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1148 (10th Cir. 2023) (“[T]o raise an inference of imprudence through price disparity, a plaintiff has the burden to allege a ‘meaningful benchmark.’”).
30
Johnson v. Parker-Hannifin Corp., 122 F.4th 205, 216 (6th Cir. 2024).
31
Id.
32
Id.
33
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16088.
34
Id. at 16136.
35
Id. at 16092 (discussing the executive order).
36
Id. at 16136.
37
Id. at 16136-43.
38
Id. at 16089.
39
Id. at 19094.
40
Id.
41
Id. at 16094-5.
42
Id. at 16088; Petition for Writ of Certiorari at i, Anderson v. Intel Corp., No. 25-498 (petition for cert. granted Jan. 16, 2026).
43
Petition for Writ of Certiorari at i, Anderson v. Intel Corp., No. 25-498 (petition for cert. granted Jan. 16, 2026); Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16088.
44
See, e.g., Douglas Hallward-Driemeier et al., Update on 401(k) Alternatives: Supreme Court Chooses to Hear Intel and DOL Guidance Expected Imminently, Ropes & Gray (Jan. 20, 2026) https://www.ropesgray.com/en/insights/alerts/2026/01/update-on-401k-alternatives-supreme-court-chooses-to-hear-intel-and-dol-guidance-expected-imminently [https://perma.cc/NYA4-KJVQ].
45
See, e.g., Meiners, 898 F.3d at 822-3 (8th Cir. 2018); Sweda, 923 F.3d at 330 (3d Cir. 2019).
46
Johnson, 122 F.4th at 213 (6th Cir. 2024).
47
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16136-43.
48
See, e.g., Douglas Hallward-Driemeier et al., Update on 401(k) Alternatives: Supreme Court Chooses to Hear Intel and DOL Guidance Expected Imminently, Ropes & Gray (Jan. 20, 2026) https://www.ropesgray.com/en/insights/alerts/2026/01/update-on-401k-alternatives-supreme-court-chooses-to-hear-intel-and-dol-guidance-expected-imminently
49
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16136-43.
50
Id.
51
Johnson, 122 F.4th at 213 (6th Cir. 2024).
52
See, e.g., Andrew G.I. Kilberg et al., DOL Proposed Safe Harbor for Selection of Designated Investment Alternatives in 401(k) Plans, Gibson Dunn (April 1, 2026), https://www.gibsondunn.com/dol-proposes-safe-harbor-for-selection-of-designated-investment-alternatives-in-401k-plans/ [https://perma.cc/W3FD-SHBK].
53
Anderson, 137 F.4th at 1021 (9th Cir. 2025); Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16088.
54
See, e.g., Douglas Hallward-Driemeier et al., Update on 401(k) Alternatives: Supreme Court Chooses to Hear Intel and DOL Guidance Expected Imminently, Ropes & Gray (Jan. 20, 2026) https://www.ropesgray.com/en/insights/alerts/2026/01/update-on-401k-alternatives-supreme-court-chooses-to-hear-intel-and-dol-guidance-expected-imminently [https://perma.cc/NYA4-KJVQ].
55
Id.
56
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16136.
57
Id. at 16112.
58
Id. at 16092.
59
See, e.g., Andrew G.I. Kilberg et al., DOL Proposed Safe Harbor for Selection of Designated Investment Alternatives in 401(k) Plans, Gibson Dunn (April 1, 2026), https://www.gibsondunn.com/dol-proposes-safe-harbor-for-selection-of-designated-investment-alternatives-in-401k-plans/ [https://perma.cc/W3FD-SHBK].
60
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16136.
61
See, e.g., Sanya Bahal and Emerson Sprick, Alternative Assets in 401(k)s, Explained, Bipartisan Policy Center (Jul. 25, 2025), https://bipartisanpolicy.org/explainer/alternative-assets-in-401ks-explained/ [https://perma.cc/KGU6-QL7J].
62
Id.
63
Fiduciary Duties in Selecting Designated Investment Alternatives, 91 Fed. Reg. at 16094.