According to SCOTUSblog's account of oral argument in Anderson v. Intel Corp Investment Policy Committee, the justices were skeptical that employees can sue retirement fund fiduciaries for imprudent investing without a benchmark. The suit alleged Intel's fiduciaries violated ERISA by investing largely in hedge funds and private equity, but the complaint lacked allegations about how other funds with similar strategies performed.
Throughout the argument, the bench used an 'apples to apples' metaphor. Justice Thomas opened by noting that a high-risk fund cannot be compared to a loss-protective fund, and Justice Kagan said the plaintiffs needed 'another apple.' The employees' lawyer, Matthew Wessler, argued the allegations should be assessed holistically, but several justices, including Alito, Gorsuch, and Barrett, pressed him on the need for a meaningful comparison.
By contrast, counsel for Intel and the government had an easier time, with justices asking them how to craft an opinion affirming the 9th Circuit. The author, Ronald Mann, predicts a likely unanimous affirmance before spring.