In Law360, Ropes & Gray Attorneys Examine Supreme Court’s Intel Case, DOL Rulemaking, and 401(k) Alternatives

In a recent Law360 expert analysis, Ropes & Gray attorneys analyze two major developments shaping the future of alternative investments in 401(k) plans: the U.S. Department of Labor’s upcoming proposed regulation on fiduciary duties for selecting alternative investments in defined contribution plans, submitted to OMB on January 13 under Executive Order No. 14330, and the U.S. Supreme Court’s grant of certiorari on January 16 in Anderson v. Intel Corp. Investment Policy Committee. The article discusses how these events together signal a pivotal moment for alternatives in 401(k) plans, and provides insight into what plan sponsors and asset managers should anticipate as investor interest in alternatives grows.

The authors explain the stakes of the Supreme Court’s review, including whether ERISA prudence claims predicated on underperformance must satisfy a “meaningful benchmark” pleading requirement, and detail the existing circuit split over this standard – contrasting the Ninth Circuit’s approach in Intel with the Sixth Circuit’s more flexible view in Johnson v. Parker-Hannifin. The article also highlights the Solicitor General’s support (joined by the DOL) for a robust benchmark requirement, which would materially affect ERISA litigation risk and fiduciary process expectations.

Importantly, the analysis discusses the DOL’s forthcoming regulation and its potential impact on fiduciary duties and litigation risk for plan sponsors considering alternative investments. Depending on the Supreme Court’s resolution, pleading standards could either tighten, potentially curbing class actions and easing expansion of alternatives, or loosen, prompting more early-stage challenges and underscoring the need for meticulous, well-documented processes. Regardless of outcome, the authors advise plan fiduciaries to ensure rigorous, participant-focused decision-making and documentation, and urge managers preparing 401(k) alternative offerings to be ready for increased sponsor inquiries in 2026.

The article was authored by ERISA and benefits partners and co-leaders of the collective investment trust practice Josh Lichtenstein and Sharon Remmer, ERISA and benefits counsel Jonathan Reinstein, benefits consulting principal David Kirchner and employment associate Kendall Dacey, litigation & enforcement partners Douglas Hallward-Driemeier, Amy Roy, Robert Skinner and Dan Ward, and asset management partners and co-leaders of the collective investment trust practice Jessica Reece and Eric Requenez.