Anderson V. Intel Consolidated Complaint Case No. 5:19-Cv-04618-LHK 1 Case 5:19-Cv-04618-LHK Document 95 Filed 06/24/20 Page 2 of 136

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Anderson V. Intel Consolidated Complaint Case No. 5:19-Cv-04618-LHK 1 Case 5:19-Cv-04618-LHK Document 95 Filed 06/24/20 Page 2 of 136 Case 5:19-cv-04618-LHK Document 95 Filed 06/24/20 Page 1 of 136 1 Joseph Creitz (Cal. Bar No. 169552) CREITZ & SEREBIN LLP 2 100 Pine Street, Suite 1250 San Francisco, CA 94111 3 [email protected] Telephone: (415) 466-3090 4 Facsimile: (415) 513-4475 5 Attorneys for Plaintiffs 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 10 WINSTON R. ANDERSON, CHRISTOPHER M. Case No: 5:19-cv-04618-LHK SULYMA, and all others similarly situated, 11 (Consolidated with Plaintiffs, Case No. 16-cv-04977-NC, and 12 Case No. 16-cv-00522) v. 13 INTEL CORPORATION INVESTMENT CONSOLIDATED COMPLAINT POLICY COMMITTEE, INTEL RETIREMENT 14 PLANS ADMINISTRATIVE COMMITTEE, CLASS ACTION FINANCE COMMITTEE OF THE INTEL 15 CORPORATION BOARD OF DIRECTORS, 16 CHRISTOPHER C. GECZY, RAVI JACOB, DAVID S. POTTRUCK, ARVIND SODHANI, 17 RICHARD TAYLOR, TERRA CASTALDI, RONALD D. DICKEL, TIFFANY DOON 18 SILVA, TAMI GRAHAM, CARY KLAFTER, STUART ODELL, CHARLENE 19 BARSHEFSKY, SUSAN L. DECKER, JOHN J. 20 DONAHOE, REED E. HUNDT, JAMES D. PLUMMER, FRANK D. YEARY, STACY 21 SMITH, ROBERT H. SWAN, TODD UNDERWOOD, AND GEORGE S. DAVIS 22 Defendants, 23 and 24 INTEL 401(K) SAVINGS PLAN and INTEL RETIREMENT CONTRIBUTION PLAN, 25 Nominal Defendants. 26 27 28 Anderson v. Intel Consolidated Complaint Case No. 5:19-cv-04618-LHK 1 Case 5:19-cv-04618-LHK Document 95 Filed 06/24/20 Page 2 of 136 1 TABLE OF CONTENTS 2 I. NATURE OF THE ACTION ......................................................................................................... 1 3 II. JURISDICTION AND VENUE .................................................................................................... 6 4 III. PARTIES ...................................................................................................................................... 7 5 A. PLAINTIFFS ................................................................................................................... 7 6 7 B. DEFENDANTS ................................................................................................................ 7 8 IV. CLASS ALLEGATIONS ........................................................................................................... 17 9 A. Numerosity and Impracticability of Joinder .............................................................. 17 10 B. Commonality .................................................................................................................. 18 11 C. Typicality ....................................................................................................................... 19 12 D. Adequacy ........................................................................................................................ 20 13 14 E. Rule 23(b)(1) .................................................................................................................. 20 15 F. Rule 23(b)(2) ................................................................................................................... 21 16 G. Rule 23(b)(3) .................................................................................................................. 21 17 V. FACTUAL ALLEGATIONS ...................................................................................................... 22 18 A. Overview of the Plans and the Intel Investment Options .......................................... 22 19 1. The 401(k) Savings Plan .................................................................................... 22 20 2. The Retirement Contribution Plans ................................................................. 25 21 22 3. The Target Date Funds and the Global Diversified Funds ............................ 28 23 4. Fiduciary Responsibilities of the Investment Committee Defendants .......... 37 24 B. The Investment Committee Defendants Subjected the Plans and 25 Participants to Unnecessary and Imprudent Expenses ......................................... 38 26 C. The Investment Committee Defendants Failed to Monitor and Replace the 27 Asset Allocation Models and Allocation Percentages for the Intel Funds ........... 56 28 Anderson v. Intel Consolidated Complaint Case No. 5:19-cv-04618-LHK i Case 5:19-cv-04618-LHK Document 95 Filed 06/24/20 Page 3 of 136 1 1. Excessive Allocations to the Non-Traditional Investment Accounts ............. 56 2 2. Deviation from Professional Standards for Target Date Funds and 3 Balanced Funds ............................................................................................. 61 4 3. The Intel Funds Imprudently Invested in Hedge Funds ................................ 66 5 4. Significant Investment in Hedge Funds and Private Equity Are 6 7 Generally Not Suitable For Balanced Funds .............................................. 71 8 5. Risks and Costs of Hedge Funds and Private Equity ..................................... 72 9 6. Opaque Disclosures ............................................................................................ 81 10 7. Self-Interest of the Investment Committee Defendants ................................. 83 11 8. Underperformance of the Non-Traditional Investments Accounts ............... 87 12 9. The Ongoing Failure of Fiduciaries of the Plans to Conduct an 13 14 Appropriate Investigation ............................................................................ 89 15 D. The Administrative Committee Defendants Made Inadequate Disclosures 16 About the Intel Funds and Provided Misinformation About Participants’ 17 Accounts and the Intel Funds ................................................................................ 100 18 VI. CLAIMS FOR RELIEF ........................................................................................................... 109 19 COUNT I (VIOLATIONS OF ERISA § 404(A) BY THE INVESTMENT 20 COMMITTEE IN SELECTING AND MONITORING THE INVESTMENT 21 22 OPTIONS FOR THE PLANS) .......................................................................................... 108 23 COUNT II (VIOLATIONS OF ERISA § 404(A) BY THE INVESTMENT 24 COMMITTEE AND INVESTMENT COMMITTEE DEFENDANTS IN 25 ALLOCATING THE INTEL FUNDS’ ASSETS) ........................................................... 111 26 COUNT III (VIOLATIONS OF ERISA §§ 404(A)(1)(A) AND 404(A)(1)(B) BY THE 27 ADMINISTRATIVE COMMITTEE DEFENDANTS FOR FAILURE TO 28 Anderson v. Intel Consolidated Complaint Case No. 5:19-cv-04618-LHK ii Case 5:19-cv-04618-LHK Document 95 Filed 06/24/20 Page 4 of 136 1 MAKE ADEQUATE AND ACCURATE DISCLOSURES) .......................................... 114 2 COUNT IV (VIOLATIONS OF ERISA § 404(A) BY THE FINANCE COMMITTEE 3 AND CHIEF FINANCIAL OFFICER DEFENDANTS FOR FAILURE TO 4 MONITOR OTHER FIDUCIARIES) .............................................................................. 119 5 COUNT V (VIOLATION OF ERISA § 102(A), 29 U.S.C. § 1022(A) AGAINST THE 6 7 ADMINISTRATIVE COMMITTEE DEFENDANTS) .................................................. 122 8 COUNT VI (CO-FIDUCIARY LIABILITY UNDER ERISA § 405 AGAINST ALL 9 DEFENDANTS) ..................................................... ERROR! BOOKMARK NOT DEFINED. 10 COUNT VII (FAILURE TO PROVIDE DOCUMENTS UPON REQUEST 11 PURSUANT TO ERISA § 104(B)(4), 29 U.S.C. § 1024(B)(4), & 29 C.F.R. § 12 2550.404A-5 AGAINST THE ADMINISTRATIVE COMMITTEE 13 14 DEFENDANTS) ..................................................... ERROR! BOOKMARK NOT DEFINED. 15 VII. ENTITLEMENT TO RELIEF .............................................................................................. 129 16 VIII. PRAYER FOR RELIEF ....................................................................................................... 129 17 18 19 20 21 22 23 24 25 26 27 28 Anderson v. Intel Consolidated Complaint Case No. 5:19-cv-04618-LHK iii Case 5:19-cv-04618-LHK Document 95 Filed 06/24/20 Page 5 of 136 1 I. NATURE OF THE ACTION 2 1. Plaintiffs Winston Anderson and Christopher Sulyma brings this action under 3 Sections 502(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act of 1974, as 4 amended (“ERISA”), 29 U.S.C. §§ 1132(a)(2) and 1132(a)(3), for breaches of fiduciary duties. This 5 action alleges that the fiduciaries of the Intel 401(k) Savings Plan (“the 401(k) Savings Plan”) and 6 the Intel Retirement Contribution Plan (“the Retirement Contribution Plan”) (collectively “the 7 Plans”) breached their fiduciary duties by investing billions of dollars in retirement savings in 8 unproven and unprecedented investment allocation strategies featuring high-priced, low-performing 9 illiquid and opaque hedge funds and private equity funds. Plaintiffs have been participants in the 10 Plans and bring this action on behalf of a class of similarly situated participants as a class action to 11 recover relief on behalf of the Plans against the Intel Retirement Plans Investment Policy Committee 12 (“the Investment Committee”) and its members, the Intel Retirement Plans Administrative 13 Committee (“the Administrative Committee”) and its members, the Finance Committee of the Intel 14 Corporation Board of Directors (“the Finance Committee”) and its members, and the Chief Financial 15 Officers of Intel Corporation (“the Chief Financial Officers”). 16 2. The Investment Committee designed and implemented retirement investment 17 strategies, a suite of target date portfolios (“Intel TDFs”) with a dynamic allocation model (meaning 18 allocations to asset classes changed over time) and a multi-asset portfolio with a fixed allocation 19 model (“Intel GDFs”)1 that deviated greatly from
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