Key Takeaways
- • Simpson Thacher attorneys say a Supreme Court ruling in Anderson v. Intel Corp. Investment Policy Committee favoring Intel could undercut the most common litigation theory against including alternative investments in 401(k) plans.
- • The Supreme Court heard oral arguments in the case on Oct. 6, according to the Law360 article by Erica Rozow, Rajib Chanda and Christopher Torikoglu.
- • The prudence theory at issue alleges fiduciary breach based on underperformance when comparing two funds that the attorneys say are not meaningfully similar.
Summary
Attorneys at Simpson Thacher, writing in Law360 on November 5, 2026, argue that a decision in favor of Intel in Anderson v. Intel Corp. Investment Policy Committee could weaken a central legal argument used against including alternative investments in 401(k) retirement plans. The U.S. Supreme Court heard oral arguments in the case on Oct. 6.
The litigation theory in question is a prudence claim against plan fiduciaries. Plaintiffs in such cases typically argue that a fiduciary failed to act prudently because a plan option underperformed, often by comparing it with another fund. According to the Simpson Thacher attorneys, that comparison is weak when the funds are not meaningfully similar. A ruling that rejects this comparison-based approach would, in their view, undercut the principal legal risk facing sponsors that consider adding alternative assets to defined contribution plans.
The source article is a limited preview, and the full text of the attorneys' analysis is behind a Law360 subscription. Accordingly, this summary does not include further detail on the court's questioning, the specific fund comparisons at issue, or the timing of a decision.
The litigation theory in question is a prudence claim against plan fiduciaries. Plaintiffs in such cases typically argue that a fiduciary failed to act prudently because a plan option underperformed, often by comparing it with another fund. According to the Simpson Thacher attorneys, that comparison is weak when the funds are not meaningfully similar. A ruling that rejects this comparison-based approach would, in their view, undercut the principal legal risk facing sponsors that consider adding alternative assets to defined contribution plans.
The source article is a limited preview, and the full text of the attorneys' analysis is behind a Law360 subscription. Accordingly, this summary does not include further detail on the court's questioning, the specific fund comparisons at issue, or the timing of a decision.
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