Kent Mason Quoted in CNBC Article on Supreme Court Oral Arguments in Anderson v. Intel and the Impact of the Court’s Decision on Plan Private Investment Offerings
- Published Date: October 13, 2026
On October 10, 2026, CNBC published an article titled, “How Supreme Court Justices are Leaning in Major 401(k) Case Over Private Funds and Underperformance,” where Davis & Harman partner, Kent Mason, was quoted discussing recent developments.
The article discusses how, on October 6, 2026, the Supreme Court heard oral arguments in the case Anderson v. Intel, considering the question of whether, when alleging a plan fiduciary breached its duty of prudence under ERISA based on fund underperformance, a plaintiff must allege a “meaningful benchmark” against which to compare the allegedly underperforming fund.
The article notes that several justices appeared receptive of Intel’s position during oral arguments and further discusses the implication for a favorable ruling for Intel on retirement plan sponsors’ comfort in adding alternative investments into 401(k) plan investment lineups.
Mason was quoted discussing whether a ruling in favor of Intel would make large employers more comfortable adopting private investments within their 401(k) plans. Mason is quoted saying “[t]he largest companies are going to be the slowest” to add private investments in their 401(k) lineup, and he expects that smaller and mid-size companies with less litigation risk will lead the way.
Mason continues that even if the Supreme Court rules in favor of Intel, and DOL finalizes proposed regulations, which “provide an excellent and helpful framework, the six-factor analysis is still subjective. . . [and] plaintiffs’ attorneys are still likely to file suit alleging large companies failed to meet their safe-harbor fiduciary obligations.”
The full article can be found here.
