The backlash against Ken Fisher — the embattled founder and frontman of RIA giant Fisher Investments — has been swift, strong and sustained.

Fisher’s personal brand seems to be eroding. Fisher Investments is taking a hit on its client assets. And lawyers say Fisher may have opened himself up to workplace-related complaints, Me Too stories and lawsuits.

For decades, Fisher has been the strongest selling point of Fisher Investments — he’s highlighted as among the top reasons investors should choose the company. But his star power has been dimming since Wednesday morning last week when Alex Chalekian, the CEO of a $90 million AUM RIA, posted a video on Twitter that has been viewed more than 140,000 times.

In that video, Chalekian, who founded Lake Avenue Financial, broke his silence on what was supposed to be a private gathering of business leaders at the Tiburon CEO Summit in San Francisco. In the slightly more than two-minute video, Chalekian shared what he described as “horrifying” comments made by Fisher during a session that was dubbed as a 'fireside chat' facilitated by Tiburon managing partner Chip Roame.

Chalekian said Fisher talked about genitalia, picking up girls and tripping on acid, among other “inappropriate” things. He said Fisher also made references to convicted sex offender Jeffrey Epstein and talked about how charities are immoral. Chalekian’s video is posted below.

Fisher’s subsequent apology has done little to quell the intense criticism of his remarks.

In a statement released to media on Wednesday afternoon last week, Fisher said: “While I said words he cited I don’t think he heard me correctly and clearly misconstrued my meaning and certainly my intended meaning. Most of his slant is ‘gotcha’ wrong in my view. To the extent he and any others were offended I apologize truly and sincerely.”

Many consider Fisher’s apology a non-apology.

“In this day and age, everything we say opens us to the potential of lawsuits.”
Bill Singer

“This is not an apology. There is no remorse for what he said, there is no desire to retract, only an attempt at deflection and state that he was misunderstood. Yeah, right,” Curtis Davis, founder and president of RIA Davis Financial Management, says in a comment posted on FA-IQ.

“This is the type of apology that I teach my 12-year-old is not an actual apology. ‘If you’re offended, then I apologize. If you are not offended, I don’t apologize because I don’t really feel what I said was wrong’. Time to get mature here and take ownership of your statement instead of making excuses,” he adds.

Fisher gave a separate apology to the firm’s roughly 1,750 employees via email on Wednesday evening last week, as reported by Forbes.

“The video takes a few parts of comments I made completely out of context and deliberately mischaracterizes them. It attributes views to me that I neither expressed nor endorsed … I’m confident if you were there you would have understood what I said in context was nothing like what is being currently reported,” Fisher says.

“Many of you are likely familiar with my sometimes colorful means of expressing myself. I like to say whatever is on my mind. I want to you to know I am sincerely sorry if anything I’ve said in your presence offended you. That certainly was never my intention,” he adds.

Fisher’s apologies have not appeased the officials responsible for the state of Michigan’s pension fund.

Michigan has withdrawn $600 million of its pension fund from Fisher Investments, as reported by the Washington Post.

Jon Braeutigam, deputy treasurer and CIO for Michigan’s Department of Treasury, informed the state’s investment board on Thursday last week that the Bureau of Investments has terminated its relationship with Fisher Investments because of Fisher’s “completely unacceptable comments,” the report says.

Fisher Investments states on its website that it had more than $112 billion in AUM as of September 30. The fee-only RIA had $94 billion in AUM as of December 31, according to an SEC filing.

Diversity and inclusion task force now in the works

By Friday afternoon last week, when the controversy and industry chatter about Fisher’s comments wouldn’t die down, Fisher Investments CEO Damian Ornani relayed a categorical apology in a letter sent to employees, as reported by Bloomberg.

"Let me be clear: Ken’s comments were wrong,” Ornani says in the memo. “He has admitted that and apologized for them."

Fisher Investments is planning to set up a diversity and inclusion task force, according to the Bloomberg report. And Ornani defends the RIA’s commitment to women and cited favorable statistics about females in leadership roles, but notes the firm could do better, the report adds.

What kind of workplace culture has Ken Fisher created?

The last few sentences of Fisher’s own apology email to Fisher Investments employees — which references his “colorful” means of expression in the workplace — may dig a deeper hole for him, according to lawyers.

“While his comments and the response that followed are troubling, the more important question revolves around the culture he has created within the organization,” says Linda Bond Edwards, a Tallahassee, Fla.-based lawyer at Rumberger Kirk & Caldwell.

Bill Singer, New York-based lawyer and author of the blog site BrokeandBroker.com, agrees with the potentially-damaging bigger picture.

“Ultimately, the larger issue for him is whether his words and conduct created a hostile workplace and/or discriminated against his employees,” Singer says.

Edwards posits the consequences of a worse-case scenario.

“If the Fisher [Investments] internal culture is sexually charged and consists of sexually-oriented comments and touching, there is definitely a problem. If the culture is sexually charged, that may mean that employees may not come forward if they experience unwelcome touching or joking,” Edwards says.

“Even if there is a policy prohibiting such conduct, employees may understand that the policy isn’t worth the paper it’s written on,” she adds.

Edwards specializes in the litigation of cases involving employment and labor issues, including discrimination matters relating to gender, race and religion. She also assists parties in resolving their disputes as a mediator, as well as arbitrating employment and commercial disputes privately and through the American Arbitration Association.

Fisher’s reference to his colorful means of expression in the workplace may have made him a target for complaints, Me Too stories or lawsuits by employees emboldened by Fisher’s description of how he conducts himself.

Potential lawsuits

“In this day and age, everything we say opens us to the potential of lawsuits. His admission of saying colorful things and apologizing for possibly having offended an employee may be used against him if any lawsuits are filed,” Singer says.

“If he strayed into that grey area [of creating a hostile work environment and engaging in discrimination], his apology, as it were, will only exacerbate his defenses,” he adds.

Singer says several points could be made in Fisher’s defense if there is nothing more than colorful language used in the workplace, however.

“On the other hand, there is no law, per se, against colorful language and an unintended offense is what it is. Keep in mind that when Representative [Rashida] Tlaib was sworn in, she called [U.S. President Donald] Trump a[n expletive] in front of her minor child,” Singer says.

“What Fisher said was inappropriate but not all that worse than what constitutes lyrics for many contemporary songs,” Singer adds.

Measures are available to Fisher and his firm to preempt any employees coming forward with workplace-related complaints, Me Too stories or lawsuits — if there are any to be made — related to Fisher’s self-described colorful way of expressing himself, according to lawyers.

But attempts to preempt employee complaints could be risky too, they say.

“He could have also asked employees to come forward if he has offended them in some way,” Edwards says. “While this move is risky, hearing exactly how his words or actions impact an employee may help him to establish communication boundaries.”

Singer is dismissive of Fisher Investments’ plan to set up a diversity and inclusion task force.

“That idea comes off as more of insincere damage control. Ultimately, these things take on the hue of a reprisal that forces innocent folks to endure dubious hours of hand-wringing over the mistake of a senior exec. I would have published a heartfelt apology rebuking Fisher, which is what the firm did, but I would not have announced a task force in the same breath. Timing in life is everything,” Singer says.

FA-IQ reached out to Fisher Investments to ask if there are concerns within the company that Fisher’s “colorful” means of expression may have created a hostile working environment.

FA-IQ also wanted to know if Fisher is reassessing the way he expresses himself at the workplace, with clients and in public, given the backlash to his Tiburon CEO Summit comments and subsequent apologies.

Fisher Investments had not replied as of this writing.

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