Just a Minute! on Retirement Plan Litigation and the Council's Brief with the Supreme Court

July 10, 2026

One of the ongoing ERISA litigation challenges for retirement plan sponsors is a strain of “underperformance” lawsuits, which assert that a fiduciary violated ERISA by selecting or retaining an investment that previously underperformed a different investment that could have been selected.

The Council continues to fight back against these suits through its amicus (“friend of the court”) brief program, most recently filing a brief with the U.S. Supreme Court in the case of Anderson v. Intel.

In this edition of Just a Minute!, Council President Katy Johnson describes the Council’s line of defense in these cases and notes a recent helpful decision from the Third Circuit Court of Appeals.