Davis & Harman Attorneys File Amicus Brief in Anderson v. Intel on behalf of the American Benefits Council before the Supreme Court
- Published Date: July 13, 2026
On July 9, 2026, Davis & Harman partners Kent Mason and Adam McMahon, assisted by associate attorneys Grace Sullivan and Addison Spencer, filed an amicus curiae brief on behalf of the American Benefits Council in support of the respondents in the case Anderson v. Intel Corp. Investment Policy Committee.
On January 16, 2026, the Supreme Court granted a writ of certiorari in Anderson, positioning the Court to review ERISA pleading standards for defined contribution plan lawsuits regarding underperformance claims. In Anderson, the Court will review whether plaintiffs who claim a breach of fiduciary duty must identify and apply a “meaningful benchmark” as part of a claim that an investment fund was imprudently selected or retained based on the fund’s past performance.co.
The American Benefits Council brief supports requiring a comparison to a meaningful benchmark, but notes that the most critical issue in all underperformance cases is that “very little, if any, weight should be given to past performance” of investment selections. Otherwise, “ERISA plan participants would suffer greatly from a regime that: (1) effectively forces fiduciaries to buy the “hot” funds, thus buying high and selling low, which is imprudent and a violation of their fiduciary duties, and (2) leads to baseless lawsuits challenging all investment funds not in the top 50% (or just not in the top 10% or 1%), thus exacerbating a litigation crisis threatening the private retirement plan system.”
In supporting respondents in the case, Mason notes his concern that “the industry is placing too much emphasis on the meaningful benchmark issue and not nearly enough emphasis on the fact that past favorable performance has no correlation with future favorable performance. To emphasize past performance actually gives plaintiffs’ lawyers a roadmap to sue plans, since every plan will at some point have funds that are not, for example, in the top 10%.”Mason also thanks the American Benefits Council for its leadership on this critical issue.
The full American Benefits Council brief can be found here.
