The two cases upon which defendant places primary relevance are also readily distinguishable.
In Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir. 1993), the plaintiff whistleblower was an employee of the employer which created the plan. The actions concerning which she blew her whistle involved direct administration of the plan itself: i) reimbursement of a former employee from a profit-sharing plan for taxes that plaintiff asserted she properly withheld from a lump sum distribution of her account, and ii) recalculation of a former employee's pension plan benefit using final pay, not final average pay allegedly in violation of ERISA regulations.
The Hashimoto court observed that "plaintiff's claim under [the Hawaiian whistleblower statute] does not easily fall on either side to the preemption line." This would lead one to conclude that given the significantly different facts in the present case, the Ninth Circuit would find that plaintiff's claim would be on the non-preemption side of the line. Unlike Hashimoto, plaintiff is not an employee of the creator of a plan. He is an employee of an employer which holds and invests in real estate funds of many entities, some governed by ERISA and some not so governed. The employer during the course of its investment management activities may be an ERISA fiduciary with respect to some functions and clearly is not with respect to others. Unlike Hashimoto, plaintiff's objections to his employer's actions did not relate to administrative decisions of a specific plan. Rather his objections were to policies of an investment fund, which was not an ERISA plan and was simply an investment vehicle of a number of entities, including ERISA plans.
There is possibly a third difference between Hashimoto and the present case. In Hashimoto, the Court concluded that the plaintiff had the right to bring an order to enforce § 1140, ERISA's whistleblower provision. I have concluded that it is unlikely that a person as remote from an ERISA plan as plaintiff could enforce § 1140 by means of a civil action under § 1132. This, however, is not a critical difference.
The other case upon which defendant places principal reliance is Anderson v. Electronic Data Systems Corp., 11 F.3d 1311 (5th Cir. 1994) It is virtually on all-fours with Hashimoto and thus it is similarly distinguishable from the present case. Plaintiff was a discharged employee of an employer which created the plan in question. As Manager of Investments and Debt he had responsibilities for investments in pension portfolios, corporate portfolios, and Title IX portfolios. He charged that he was asked to commit four illegal acts, two of which involved approval of payment invoices on behalf of pension portfolios without approval of the pension fund trustees in violation of ERISA. He was also asked to write minutes in violation of ERISA. In addition to being an employee of the creator of the plan, plaintiff was, according to the court's findings, both a participant in the plan and a fiduciary. In these circumstances the court held that plaintiff had an ERISA remedy. Anderson, like Hashimoto, is readily distinguishable from the present case.
Thus, applying the analysis set fourth in United Wire, I conclude that ERISA does not preempt plaintiff's cause of action under CEPA. CEPA is a statute of general application which does not single out benefit plans for special treatment and which does not confer rights predicated upon the existence of such plans. Its effects in the present case in no way dictate or restrict the choices of ERISA plans with respect to their benefits, structure, reporting, and administration. Applying state whistleblower statutes to employers which administer funds in which various entities, including ERISA plans, invest would not impair in any way the ability of the plans to function simultaneously in a number of states. Congress did not intend in these circumstances that ERISA preempt whistle blower statutes.
Defendant's motion to strike plaintiff's notice of voluntary dismissal is granted. Plaintiff's motion to remand the case to the State courts is granted. I shall file an appropriate order.
DICKINSON R. DEBEVOISE, U.S.D.J.
Dated: March 16, 1994
ORDER - March 23, 1994, Entered
The case having come before the court upon defendant's motion to strike plaintiff's notice of dismissal filed pursuant to Fed. R. Civ. P. 41 (a)(1) and upon plaintiff's motion to remand this action to the state court; and the court having reviewed the submissions of the parties and having heard the arguments of counsel; and for the reasons set forth in an opinion of even date.
It is this 16th day of March, 1994 ORDERED as follows:
1. Defendant's motion to strike plaintiff's notice of dismissal is granted and the action is hereby restored as a pending case.
2. Plaintiff's motion to remand the case to the state courts is granted and the action is remanded to the Superior Court of New Jersey, Essex County.
3. Until modified or vacated by an order of the Superior Court of New Jersey, this court's order placing certain documents under seal and enjoining plaintiff from disclosing confidential information shall remain in full force and effect. The court retains jurisdiction to enforce said order until such time as the state court enters an order governing the subject matter of the order.
DICKINSON R. DEBEVOISE, U.S.D.J.