Davis & Harman Attorneys and Encore Fiduciary Co-Author Blog Post on the Meaningful Benchmark Standard for ERISA Plan Underperformance Claims
- Published Date: September 10, 2026
On September 9, 2026, Encore Fiduciary together with Davis & Harman partner, Kent Mason, and associate, Grace Sullivan, published a FidGuru Blog post titled, “The Meaningful Benchmark Standard: What it is, Why it Matters, and What is at Stake in Anderson v. Intel.”
In the post, authors detail how, in October 2026, the Supreme Court is expected to hear oral arguments in Andreson v. Intel, a case that will determine whether a “meaningful benchmark” is required of plaintiffs who file imprudent investment lawsuits against their retirement plans. In ERISA fiduciary litigation, a “meaningful benchmark” is an appropriate comparator investment that is sufficiently similar to the challenged investment – in terms of aims, risks, investment strategy, and potential rewards – to serve as a legitimate basis for inferring fiduciary imprudence from alleged underperformance of the challenged investment.
The post describes what circuit courts have held regarding a meaningful benchmark standard and why a meaningful benchmark standard matters to plan fiduciaries. But very importantly, the article also makes it clear that while a comparison to a meaningful benchmark should be required in an underperformance case, it should never be enough for a suit to survive a motion to dismiss, because that would compel plan fiduciaries to buy high and sell low. If a meaningful benchmark alone is enough to survive a motion to dismiss, that would also subject virtually all plans to constant litigation, since no plan will have funds that are always at the top in terms of past performance.
In closing, the authors explain that the Supreme Court’s ruling is crucial for plan sponsors of ERISA retirement plans who remain under attack by plaintiff firms that, with the benefit of hindsight, cherry-pick through plan investment lineups looking for underperforming investments to use as a basis to allege a breach of fiduciary duty.
The full blog post can be found here.
