NYC Pensions Increase Allocation to Emerging Managers Following Outperformance

Minority- and women-owned managers have beaten the city’s pension funds’ benchmarks in all asset classes since 2015.




New York City’s pension funds announced they are expanding their emerging manager program after an analysis showed that the women-and minority-owned asset managers with whom they invest have outperformed their benchmarks net of fees in all asset classes since 2015.

“Rigorous analysis conducted over the past year in partnership with our five boards clearly indicates that diverse-owned firms have led to important gains within our portfolio,” New York City Retirement System CIO Steven Meier wrote in the retirement system’s second annual report of investments in minority- and women-owned business enterprises and emerging manager firms.

According to the report, participation of MWBE managers in the retirement system’s U.S.-based, actively managed assets grew to $19.5 billion, or 12.86% of its total portfolio, as of the end of June, from $16.82 billion, or 11.65%, last year. New York City Comptroller Brad Lander said in the report that he expects that by 2029, 20% of the pension funds’ U.S.-based, actively managed assets will be invested with minority- and women-owned investment firms.

“The strong historical performance of emerging managers both diverse and nondiverse—has prompted a strategic decision to recommend the expansion of our Emerging Manager programs,” the report stated. “We believe this expansion aligns with the overarching goal of securing long-term financial stability for pension beneficiaries, ensuring prudent diversification, and harnessing the potential of dynamic and successful asset management strategies.

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As part of the expansion of the emerging manager program, the Comptroller’s Office announced it is looking into proposals that include:

  • Expanding the direct emerging manager program in private equity;
  • Creating a direct emerging manager program in real estate and alternative credit; and
  • Expanding the fixed-income emerging manager program to include a direct emerging program.

“We often cite portfolio diversification as an important strategy for achieving portfolio objectives, and diversity supports diversification,” Meier said. “As large institutional investors, we benefit from a diverse portfolio of asset managers and strategies, and we’re well-positioned to expand our diverse and emerging manager mandates across asset classes.”

Among the portfolios’ asset classes, hedge funds are by far the most represented by emerging managers, who represent 36.71% of the asset class’s total exposure. This was followed in a distant second by private equity at 8.36% and alternative credit at 7.09%. Emerging managers represented 5.58% of public equity’s total exposure, while they represented 2.63% of private real estate, 1.78% of private infrastructure and 1.03% of public fixed income.

“MWBE managers have historically generated alpha for the five New York City retirement systems since 2015,” the report stated. “In Public Markets, all MWBE managers have generated excess returns net of fees. In Private Markets, the MWBE firms in the Systems portfolio have outperformed their respective benchmarks with an average PME Spread of 4.9%.”

The report noted that PME—public market equivalent spread—is a measure of the opportunity cost of investing in public market equivalents, and a positive PME spread indicates outperformance.

Within the private equity asset class, emerging managers have a PME spread of 8.5% since 2011, when the city’s retirement systems changed their strategy and approach to private equity investing. In real estate, emerging managers have a PME spread of 5.5% since 2015, when the real estate emerging manager program was relaunched. Alternative credit emerging managers have a PME spread of 24% since its inception in 2015, and infrastructure and hedge fund emerging managers have PME spreads of 6.48% and 3.96%, respectively.

“We hold our fiduciary duty to the pensioners first and foremost, and we will continue to identify emerging and diverse managers that we believe offer strong risk adjusted returns for our systems,” Lander said in the report.

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SEC Accuses Kraken of Operating Unregistered Securities Exchange

The charge will only stick if the court agrees with the SEC that the tokens involved are, indeed, securities.




The Securities and Exchange Commission identified 11 crypto tokens as securities in a complaint brought Monday against crypto trading platform Kraken.

The lawsuit brought by the SEC in U.S. District Court for the Northern District of California, San Francisco Division, alleges that Payward Inc. and Payward Ventures Inc., the registered companies behind Kraken, have been operating Kraken as an unregistered securities exchange since at least September 2018. The SEC refers to the tokens traded on Kraken as “crypto asset securities” in the corresponding press release relaying the charges.

The complaint alleges further that Kraken comingled its assets with that of its customers and also comingled the functions of exchange, broker, dealer and clearing agency in its client services. Kraken comingled a total of $33 billion in cryptocurrency and $5 billion in cash with its own assets, the SEC alleges.

The “comingling of functions” is a common criticism SEC Chairman Gary Gensler has made against actors in the crypto industry.

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Plan Fiduciaries, Take Note

401(k) plan fiduciaries should take note of the complaint when it comes to offering cryptocurrency to plan participants, Wagner Law Group partner Kimberly Shaw Elliott wrote in emailed commentary.

“The SEC’s new enforcement activity should be a clear warning to not only unregistered crypto providers and the advisers who recommend crypto investments, but also to retirement plan fiduciaries who approve those investments,” she wrote. “Is it prudent to place faith in the seller or holder of crypto who does not go through the rigors of registration? While some registered broker/dealers are now offering crypto to 401(k) plans through registered exchange-traded funds, a fiduciary must still weigh the risk of loss against the opportunity for gain from these highly volatile investments.”

Shaw Elliott noted a 2022 Department of Labor bulletin warning about the risks of allowing participants to invest in cryptocurrency. The regulator successfully received the dismissal of a lawsuit filed by recordkeeper ForUsAll Inc., which had sought damages for the bulletin’s chilling effect on providing cryptocurrency through the self-service brokerage window.

Philip Moustakis, a partner in Seward & Kissel and a former attorney with the SEC’s enforcement division, says the “threshold question is whether we are dealing with securities” in this case. If the tokens in question are not securities, then the SEC cannot bring the other allegations against them.

At various points in the complaint, the SEC asserts that different tokens were “sold as investment contracts,” a key component in determining that an asset is a security. The SEC also notes that the 11 tokens in question were all previously brought as examples of securities in enforcement actions taken against cryptocurrency exchanges Binance and Coinbase. The SEC stated that it needs “only [to] establish that Kraken has engaged in regulated activities relating to a single crypto asset security.”

The 11 tokens trade under the symbols ADA, ALGO, ATOM, FIL, FLOW, ICP, MANA, MATIC, NEAR, OMG and SOL.

The Howey Test

The SEC alleges in the complaint that: “Based on the public statements of their respective issuers and promoters—at least some of which were rebroadcast by Kraken itself on the Kraken Trading Platform—a reasonable investor would have understood the offer and sale of each of the Kraken-Traded Securities as offers and sales of investment contracts.”

Moustakis says that a fair attorney “could write both sides of the brief” about the tokens’ status, and this case “brings no further clarity” on which tokens are securities.

Though “the Howey Test is fairly clear,” Moustakis says, referring to the legal test for determining if an asset is a security, it can be difficult to apply to crypto because of the nature of blockchain technology. With crypto, “a security one day can be a non-security the next.”

Whether or not the tokens satisfy the Howey Test is the key question, because if they do not, then the other allegations fall outside the SEC’s jurisdiction, the attorney says. Comingling assets is “a no-no in the securities world,” Moustakis says, while also questioning whether cryptocurrency is the securities world.

On the comingling of functions, Moustakis says “federal securities laws break out the functions” of broker, dealer, exchange and clearing agency “to create a series of checks and balances” to protect investors. However, if the tokens are found to not be securities, then this “is an unregulated space.”

Gensler has repeatedly stated that the securities laws and Howey Test are clear enough and that further regulation or other clarification is not needed to bring enforcement actions against the crypto industry.

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