With summer behind us and fall underway, the Supreme Court’s 2026–2027 term is here. Twenty-five cases spanning civil, criminal, and administrative topics will occupy the Justices’ docket; several may capture the nation’s attention.
Among the cases to watch are Anderson v. Intel Corporation Investment Policy Committee, No. 25-498 (Jan. 16, 2026); Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, No. 25-352 (Mar. 30, 2026); and Crowther v. Board of Regents of the University System of Georgia, No. 25-183 (Dec. 8, 2025).
Anderson v. Intel Corporation Investment Policy Committee
Anderson v. Intel Corporation Investment Policy Committee comes from the Ninth Circuit and concerns the fiduciary duties associated with managing retirement savings under the Employee Retirement Income Security Act of 1974 (“ERISA”). In Anderson, the plaintiffs commenced a putative class action under ERISA against the trustees of their employer’s (“Intel”) proprietary retirement funds. The plaintiffs relied on 29 U.S.C. § 1109(a), which imposes personal liability on ERISA plan fiduciaries for any losses associated with their breach of fiduciary duty, and alleged two fiduciary duties were breached: (1) the duty of prudence which was allegedly breached by investing retirement funds in private equity funds and hedge funds; and (2) the duty of loyalty which was allegedly breached by routing funds to companies in which Intel’s venture-capital arm had previously invested. In support of their duty of prudence claim, the plaintiffs claim “that hedge funds and private equity pose challenges and risks beyond those posed by ‘traditional investments’ such as mutual funds” and “do not increase diversification of asset classes.”
The district court dismissed the complaint for failure to state a claim, finding the plaintiffs did not plausibly allege breaches of the duty of prudence or duty of loyalty, and the Ninth Circuit affirmed. For purposes of the Supreme Court review, the Ninth Circuit’s imprudence analysis is most pertinent. First, the Court rejected the plaintiffs’ argument that the trustees were imprudent by investing the plans’ assets in hedge funds and private equity—effectively dismissing the contention that these investment vehicles are categorical underperformers. It explained that a risky investment decision is not per se imprudent but must be measured against the portfolio as a whole and against comparable plans. Indeed, courts “evaluate prudence prospectively, based on the methods the fiduciaries employed, rather than retrospectively, based on the results they achieved[.]” As such, the Ninth Circuit explained that the plaintiffs’ theory that a prudent fiduciary would have acted differently in like circumstances must be gauged by drawing a factually sound comparison—a “meaningful benchmark”—not merely an assertion that the “costs are too high, or returns are too low.”
To enable plaintiffs to present a “meaningful benchmark,” the Court noted the plan administrators, as ERISA requires, made extensive disclosures that sufficiently equipped the plaintiffs with detailed information about the plan’s assets to find a comparable plan and sufficiently plead that a prudent fiduciary in similar circumstances would have taken a different course of action. Instead, the plaintiffs did not use this information to strengthen their pleadings and, thus, the Court granted dismissal at the pleading stage. As it currently stands in the Eleventh Circuit, this decision serves as a practical reminder of what is needed at the pleading stage to cross the threshold “between possibility and plausibility.”
In October 2026, the Supreme Court will hear arguments on the following issue: “Whether, for claims predicated on fund underperformance, pleading that an Employee Retirement Income Security Act fiduciary failed to use the requisite ‘care, skill, prudence, or diligence’ under the circumstances and thus breached ERISA’s duty of prudence when investing plan assets requires alleging a ‘meaningful benchmark.’”
Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia
In Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, the Supreme Court will analyze whether a defendant may assert an affirmative defense as the basis for a summary judgment motion where the affirmative defense was not raised in a pleading, the defendant did not seek to amend the pleading, and amending the pleading could have been barred by Federal Rule of Civil Procedure 16(b)(4).
This question arises in a pregnancy discrimination matter brought under Title VII. In April 2019, Plaintiff-Petitioner Jasmine Younge was hired as Deputy Chief of Staff and Director of Policy and Programs at the Fulton County District Attorney’s Office (the “DA’s Office”) by Fulton County District Attorney Paul Howard, Jr. In this position, Younge was third-in-command, supervised more than thirty employees, and worked closely with Howard. Approximately two months after starting, Younge told Howard that she was pregnant. Upon learning this information, Howard allegedly stopped meeting with Younge, reassigned some of her work duties, and two weeks later, fired Younge.
Younge sued the DA’s Office for pregnancy discrimination in violation of Title VII. In answering the complaint, the DA’s Office asserted several affirmative defenses, but did not assert that Younge was “personal staff” of an elected official exempt from Title VII’s protections. The DA’s Office later raised the personal staff exemption defense at summary judgment, and Younge opposed that motion, arguing that the DA’s Office could not belatedly raise the affirmative defense absent good cause. The district court allowed the DA’s Office to raise the personal staff exemption defense and granted summary judgment, and Younge appealed to the Eleventh Circuit. The Eleventh Circuit held that Younge was not unfairly surprised or prejudiced by the argument, noting that she never moved to reopen discovery, despite the magistrate judge’s willingness to do so. The Supreme Court will be asked to decide whether allowing the affirmative defense to be raised at summary judgment, rather than at the pleading stage, is permissible without amending or seeking to amend the answer, even where adding the affirmative defense would be barred by Rule 16.
Crowther v. Board of Regents of the University System of Georgia
Lastly, in Crowther v. Board of Regents of the University System of Georgia, the Supreme Court will address: “Whether Title IX provides employees of federally funded educational institutions a private right of action to sue for sex discrimination in employment.”
This inquiry arrives before the Supreme Court as a consolidated appeal involving two separate cases decided by the Eleventh Circuit: Joseph v. Board of Regents of the University System of Georgia, No. 23-11037, and Crowther v. Board of Regents, No. 23-12475. The common throughline is the Eleventh Circuit’s construction of Title IX as “an express remedial scheme for withdrawing federal funding,” not a vehicle for a private cause of action. The Court explained that unlike Title VII, which confers a private cause of action for victims of discrimination, Title IX serves to protect individuals from discriminatory practices by federally funded institutions. The one nationwide exception is that students are awarded an implied right of action to sue under Title IX because they would otherwise have no comparable statutory right unlike employees under Title VII. The Eleventh Circuit’s narrow interpretation of Title IX, however, is not uniformly applied throughout the nation and, therefore, the Supreme Court will have the opportunity to opine on the circuit split.
The Fall 2026 term began on October 5, 2026, and the Court will hear arguments in these and other cases throughout it. If you have any questions about these matters or topics, please reach out to the authors of this article or the EBG attorney with whom you normally coordinate.
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The Commercial Litigation Update blog is currently edited by Jennifer O'Connor and Adam Paine.
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