Fisher Investments Faces Class Claim over Cold-Calling Violations
(Updated with commentary from an outside lawyer.)
Billionaire Ken Fisher’s registered investment advisory firm faces a class action for allegedly using an automatic telephone dialing system to make unsolicited calls to thousands of prospective clients.
Bryant is seeking injunctive relief to halt Fisher’s conduct, which he claimed has “resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals.”
He’s also seeking unspecified statutory damages on behalf of himself and other members of the class, which includes individuals in the U.S. who were not Fisher clients and were on do-not-call lists but also received multiple marketing calls from the company over the last four years.
The complaint said Bryant and the other members are each entitled to a minimum of $500 in damages for each TCPA violation and up to $500 for each do-not-call violation.
“The allegations in this frivolous lawsuit are completely false,” Fisher Investments spokesman John Dillard said in a statement. “We fully comply with the law.”
Bryant, who said he has been registered with the FTC’s do-not-call list since 2009, claimed that Fisher in the fall of 2020 began making unsolicited calls to his personal cell phone from numerous numbers and that there was a “noticeable” pause before being greeted by a live person, which he said was indicative of an automated dialing system.
The TCPA specifically prohibits telemarketers from using an automated dialing system or an artificial or prerecorded voice without the recipient’s prior express consent, according to the suit.
Brady Hermann, a Boston-based lawyer not involved in the case, said that it’s likely an uphill battle for Bryant, particularly given the Supreme Court’s ruling on April 1 in Facebook v. Duguid, which granted wider latitude to telemarketers using automatic telephone dialing systems.
“Plaintiff will have to prove that Fisher Investments used a random or sequential number generator to call him,” Hermann wrote in a LinkedIn post. “A lot of telephone systems used by businesses today do not, so plaintiff may have an uphill battle.”
Fisher’s RIA, which is known for its aggressive marketing, including calls, mailings and prevalent television advertising slamming annuities, has faced other complaints over its sales tactics.
According to a 2019 report, the FTC had fielded at least 125 grievances from individuals about Fisher Investments’ cold-calling since 2016, although the complaints did not result in any regulatory action.
Fisher’s firm at the time denied the allegations about cold-calling and said it adds individuals to its contact suppression list when they ask not to be contacted in the future.
Fisher Investments, which faced backlash in 2019 over sexist remarks its founder made at an industry conference, managed over $159 billion as of the end of 2020, according to its Form ADV filed on March 26 with the Securities and Exchange Commission, up more than 30% from the $121 billion it had reported at the end of 2019.
Cold-calling was a popular way for brokers to build a client book but has largely fallen out of favor over the past decade amid concerns over inefficiency and do-not-call violations. Firms have cracked down as the Financial Industry Regulatory Authority and state regulators have also imposed penalties related to the practice.
In one example, Merrill Lynch in 2019 ousted three veteran advisors for alleged cold-calling misconduct, and last year hit pause on cold-calling in its training program. A senior executive said in January it would revise its training program to move away from cold calling prospects.