ERISA Litigation Update

Key Takeaway: On October 6, 2026, the U.S. Supreme Court will hear argument in Anderson v. Intel Corporation Investment Policy Committee (No. 25-498), a case concerning plan participants’ challenges to certain investments made available in Intel’s 401(k) plan. The case asks the Court to address the pleading burden for claims of imprudence based on allegations of fund underperformance.

Petitioners’ brief presents two justifications for reversing the Ninth Circuit’s affirmance of the district court’s dismissal. They first argue that the Intel funds at issue in the case underperformed petitioners’ selected comparator funds and, relatedly, that the “judicially created” requirement that claims based on alleged underperformance must plead a “meaningful benchmark” is unsupported by ERISA and inconsistent with standard pleading rules. Second, petitioners maintain that the underlying hedge funds and private equity investments in which the challenged funds invested were categorically imprudent. In response, the Intel fiduciaries argue that the meaningful benchmark requirement is necessary to create a plausible inference that the funds’ alleged underperformance was the result of an imprudent process. The Intel fiduciaries also argue that the petitioners’ per se attacks on hedge funds and private equity are contrary to well-established law and fail to grapple with the specific goals of these types of investments. 

The United States filed a brief as amicus curiae supporting Intel and focusing on the need for a meaningful benchmark requirement. The Court has granted the solicitor general permission to participate at oral argument. Several industry organizations provided amicus support for the Intel fiduciaries, including the U.S Chamber of Commerce, the American Retirement Association, the ERISA Industry Committee, the American Benefits Council, the National Association of Manufacturers, the Investment Company Institute, the American Investment Council, and the Managed Funds Association. Interest groups that provided amicus support for the petitioners include the AARP, the American Association for Justice, a trio of former Department of Labor officials, nonprofits Americans for Financial Reform and Consumer Federation of America, and a group of investment law scholars. 

On October 7, 2026, the day after the oral argument, Goodwin’s ERISA litigators will present a webinar on the argument and its potential impact on ERISA fiduciaries, plan sponsors, and future litigation challenging plan investments. That webinar can be accessed here.

Key Takeaway: The Third Circuit held that evidence of underperformance is insufficient to create a genuine issue of material fact where the fiduciaries employed a sound process for monitoring plan investments. 

In Johnson v. Quest Diagnostics Inc. (No. 24-2866), the Third Circuit Court of Appeals affirmed a grant of summary judgment for Quest. The plaintiffs, two participants in Quest’s 401(k) plan, had sued alleging that the plan fiduciaries had violated their fiduciary duties by maintaining in the plan a target-date fund suite and another investment fund that the plaintiffs had alleged underperformed alternatives. The plaintiffs had also alleged that the fiduciaries’ decisions to not remove the challenged funds from the plan violated the plan’s investment policy statement. The defendants moved for summary judgment, and the district court granted that motion.

The Third Circuit affirmed, finding that the plan fiduciaries had employed a prudent process. The court’s decision focused on three particular aspects of the process. First, the court found that the fiduciaries had retained an independent adviser, reviewed the adviser’s data and information regarding the challenged funds, and sought more information when needed. Second, it found that the fiduciaries understood that their adviser’s recommendations regarding the funds were supported by credible data. Third, the fiduciaries otherwise followed accepted practices of plan management, including by removing plan funds and placing others on a watch list when needed. Finally, as to the claim regarding the plan’s investment policy statement, the Third Circuit found that the provisions of the statement that the plaintiffs relied on were not binding on the fiduciaries but rather were discretionary. 

Key Takeaway: The district court held that the plaintiffs failed to sufficiently allege any meaningful benchmarks and that the plaintiffs’ prohibited transaction claims were too vague and conclusory to state a claim upon which relief could be granted. 

On August 17, 2026, the Northern District of Illinois granted a motion to dismiss in Farrar v. Arthur J. Gallagher LLC (No. 25-13005). Plan participants in Gallagher’s 401(k) plan challenged the retention of a guaranteed investment contract (GIC), a type of stable value fund that provides a guaranteed rate of return during a specified period. The plaintiffs claimed that the plan fiduciaries breached ERISA’s duty of prudence because the plan’s GIC underperformed another GIC with similar characteristics. However, the amended complaint identified only one comparator that the plan’s GIC had allegedly consistently underperformed; the remaining complaint comparators outperformed the plan’s GIC for certain portions of the putative class period but not others. The plaintiffs also brought a prohibited transaction claim premised on payments from the plan to its recordkeeper and revenue sharing paid to the recordkeeper. 

The district court held that dismissal of the GIC-related claim was warranted because the plaintiffs failed to identify a “consistent sample” of comparators to the plan’s GIC. Moreover, the court ruled that allegations that only one comparator outperformed the challenged fund for the entire class period were insufficient to support an inference of imprudence. With respect to the plaintiffs’ prohibited transactions claim, the court dismissed the claim because, while it found that the amended complaint sufficiently alleged that the recordkeeper was a party in interest, the complaint was missing nonconclusory factual allegations about the nature of the alleged revenue sharing agreement or fees paid to the recordkeeper. The district court dismissed the complaint in its entirety, but without prejudice to filing a third amended complaint.

Key Takeaway: The court found that total fees of other plans as reflected in a survey were not meaningful benchmarks for the at-issue plan’s fees. 

In Colston v. Ameritas Holding Company (No. 23-3137), the District of Nebraska granted a motion to dismiss on September 8, 2026, in a case challenging the fees in a Ameritas 401(k) plan through which participants invest in Ameritas accounts and could later receive their benefits as guaranteed annuities. Plaintiffs alleged that the plan’s fiduciaries had violated their duties of prudence and loyalty by not adequately monitoring the plan’s fees and causing excessive fees to be paid. In so alleging, the plaintiffs mainly focused on two types of fees that could be charged to the plan under the governing annuity contract, estimated the amount paid pursuant to those fees, and then compared that estimated fee to certain benchmarks in a BrightScope/Investment Company Institute study.

The district court held that the plaintiffs’ prudence claim failed because the benchmarks they selected were not meaningful benchmarks for the plan, as the study the plaintiffs used did not contain information regarding whether the surveyed plans received similar services as did the Ameritas plan. Moreover, the plaintiffs’ claims also failed because they were speculative, as the plaintiffs did not plead the actual amount of challenged plan fees, but rather, their estimation of what those fees might have been, rendering the comparison unreliable. With respect to the plaintiffs’ claim that the defendants had breached their duty of loyalty, the court found that the claim similarly failed due to the lack of well-pleaded allegations that the plan’s fees were excessive or improper, as without such allegations, the court could not find that the plaintiffs had adequately alleged that the fiduciaries had an improper motive when retaining Ameritas as a plan service provider. 

Webinar: Supreme Court 2026-2027 Term Preview: Key Cases and Emerging Issues to Watch (September 30, 2026)
Brian Burgess, William Evans, and Cassie Snyder discussed significant Supreme Court cases and trends that could have impacted businesses, employers, financial institutions, healthcare organizations, and other regulated entities in the then-upcoming term.

Webinar: Anderson v. Intel: Breaking Down the Supreme Court Argument on ERISA’s Duty of Prudence and the “Meaningful Benchmark” Requirement (October 7, 2026)
Alison V. Douglass, Jordan Bock, and Isabel Marin will present a webinar examining the Supreme Court’s oral argument in Anderson v. Intel and its potential impact on ERISA fiduciaries, plan sponsors, and future litigation challenging plan investments.

Speaking Engagement: The Reish Brief (October 13, 2026)
Jamie Fleckner joins Fred Reish on The Reish Brief, moderated by Jania Stout, for a discussion on current trends in ERISA litigation, including the claims being brought against retirement plans, emerging areas of litigation risk, and practical steps plan sponsors and fiduciary committees can take to prepare for potential claims.

Goodwin’s Niall Dickson, Heath Ingram, and Ben Reilly Named Law360 Rising Stars (August 3, 2026)

Congratulations to Benjamin (Ben) Reilly, who was named a 2026 Law360 Rising Star in the Benefits category. Ben is an ERISA litigator who represents service providers and plan sponsors in nationwide ERISA class actions involving retirement, health and welfare, and other employee benefit plans.

The Best Lawyers in America 2027 Recognizes Over 200 Goodwin Lawyers

Goodwin ERISA Litigation partners Jamie Fleckner and Dave Rosenberg were recognized in The Best Lawyers in America, with Rosenberg earning his first recognition in the guide.