Plaintiff in Fisher Telemarketing Case Revises Claims After Pushback from the Mega-RIA
(Updated with statement from Fisher Investments)
The plaintiff in a putative class action challenging telemarketing practices at billionaire Ken Fisher’s registered investment advisory firm has refiled his complaint this week after opposition from the $159 billion-AUM Camas, Washington-based RIA.
The updated filing came after Fisher last week had denied Bryant’s claims and sought dismissal of the case entirely. Bryant’s automatic-dialer claims didn’t hold water as it “did not use an ‘automatic telephone dialing system’ as defined in the TCPA,” the RIA argued in a June 4 filing in the U.S. District Court of Western Washington.
Its dialing system lacks the capacity ‘“to store or produce telephone numbers to be called, using a random or sequential number generation,’” a feature that would have made the automated dialing system illegal.
Fisher had also argued in its response to the initial complaint that “[a]ny and all TCPA claims brought in the Complaint are barred to the extent Plaintiff and the putative class members had an established business relationship with Fisher.” It claimed that Bryant could not assert TCPA claims against Fisher to the extent he or others “voluntarily” provided phone numbers for the purpose of receiving calls like the ones referenced in his complaint.
In his amended complaint, however, Bryant said he “never had any type of business relationship” and did not inquire about any of Fisher Investments’ goods or services or make any purchases from the firm. He also said the firm “failed to honor or abide by” his repeated opt-out requests, which he claimed was indicative that the firm did not maintain internal do-not-call lists or enforce any procedures for using them.
Bryant reiterated that the firm had called him around 15 times without his consent, beginning in the fall of 2020, despite being registered with the FTC’s do-not-call list since 2009 and repeatedly asking the firm not to contact him again.
He 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 and the other class members would each be entitled to $500 in damages for each negligent violation of the TCPA and up to $1,500 for each do-not-call violation due to the firm’s knowing or willful conduct, according to the lawsuit.
The putative class would include anyone who received similar calls from Fisher in the last four years, which his lawsuit claims could include “several thousands” of people.
Fisher Investments said it expects the rest of the claims in the “frivolous” case will ultimately fail, as the auto-dialing claim.
“The claimant dropped their auto-dialer allegation because, like the other allegations, it was not true,” spokesman John Dillard said in an emailed statement. “We expect the rest of this meritless case to continue similarly.”
Bryant’s attorneys did not immediately respond to a request for comment on the case.
Fisher’s RIA, known for its aggressive marketing, including calls, mailings and prevalent television advertising slamming annuities, has faced other complaints over its sales tactics.
For instance, 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 Investments, which faced backlash in 2019 over sexist remarks its founder made at an industry conference, grew its assets 30% to $159 billion as of the end of 2020, according to its Form ADV filed on April 5 with the Securities and Exchange Commission.
Cold calling, once a popular way for brokers to build a client book, has 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, Finra is probing possible cold calling violations at Merrill Lynch Wealth Management’s advisor training program, according to sources with knowledge of the matter.