UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WINSTON R. ANDERSON; No. 22-16268 CHRISTOPHER M. SULYMA, and all others similarly situated, D.C. Nos. 3:19-cv-04618- Plaintiffs-Appellants, VC 3:15-cv-04977- v. VC 5:16-cv-00522- INTEL CORPORATION LHK INVESTMENT POLICY COMMITTEE; INTEL RETIREMENT PLANS ADMINISTRATIVE OPINION COMMITTEE; FINANCE COMMITTEE OF THE INTEL CORPORATION BOARD OF DIRECTORS; CHRISTOPHER C. GECZY; RAVI JACOB; DAVID S. POTTRUCK; ARVIND SODHANI; RICHARD TAYLOR; TERRA CASTALDI; RONALD D. DICKEL; TIFFANY DOON SILVA; TAMI GRAHAM; CARY KLAFTER; STUART ODELL; CHARLENE BARSHEFSKY; SUSAN L. DECKER; JOHN J. DONAHOE; REED HUNDT; JAMES D. PLUMMER; FRANK D. YEARY; STACY SMITH; ROBERT H. SWAN; TODD UNDERWOOD; 2 ANDERSON V. INTEL CORP. INV. POLICY COMM.

GEORGE S. DAVIS,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding Argued and Submitted October 5, 2023 Honolulu, Hawaii Filed May 22, 2025 Before: Marsha S. Berzon; Eric D. Miller; and Lawrence VanDyke, Circuit Judges

Opinion by Judge Miller; Concurrence by Judge Berzon

SUMMARY *

ERISA / Fiduciary Duty

The panel affirmed the district court’s dismissal of Winston R. Anderson’s putative class action under the Employee Retirement Income Security Act alleging that the trustees of Intel Corporation’s proprietary retirement funds breached their fiduciary duty of prudence and duty of loyalty. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ANDERSON V. INTEL CORP. INV. POLICY COMM. 3

Anderson alleged that the trustees breached their duty of prudence by investing some of the funds’ assets in hedge funds and private equity funds. He alleged that they breached their duty of loyalty by steering retirement funds to companies in which Intel’s venture-capital arm, Intel Capital, had already invested. The panel held that Anderson did not state a claim for breach of ERISA’s duty of prudence. Because prudence is evaluated prospectively, based on the methods the fiduciaries employed, rather than retrospectively, based on the results they achieved, it is not enough for a plaintiff simply to allege that the fiduciaries could have obtained better results. Instead, a plaintiff must provide some further factual enhancement. When a plaintiff relies on a theory that a prudent fiduciary in like circumstances would have selected a different fund, the plaintiff must provide a sound basis for comparison. The panel concluded that Anderson did not plausibly allege that Intel’s funds underperformed other funds with comparable aims. Anderson failed to state a claim for breach of the duty of prudence because he made only general arguments about the riskiness and costliness of hedge funds and private equity funds without providing factual allegations sufficient to support the claim that the investments that were actually made were ill-suited to the Intel funds. The panel held that Anderson failed to state a claim that Intel’s fiduciaries breached their duty of loyalty because he did not plausibly allege a real conflict of interest, rather than the mere potential for a conflict of interest. Concurring in full in the majority opinion, Judge Berzon wrote separately to clarify the role of comparisons and circumstantial allegations in duty-of-prudence claims. She 4 ANDERSON V. INTEL CORP. INV. POLICY COMM.

wrote that compar