In ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 25 NY3d 1043, 1044, 10 N.Y.S.3d 486, 32 N.E.3d 921 (2015), a CDO collateralized debt obligation securitizer affirmatively represented to the plaintiff monoline insurer, in response to the insurer's inquiries, that the entity that selected the collateral would be an equity investor in the transaction, while concealing its knowledge that that entity planned to take a short position contrary to the insurer's interests. (25 NY3d at 1044-1045.)

The Court of Appeals held that the insurer had sufficiently pleaded justifiable reliance even though it had not secured a "prophylactic provision" (id., at 1045) or even, as the dissent would have required, "simply asked the collateral selection agent directly what its investment position was . . . ." (Id., at 1047.)

The Court also noted that, unlike in Centro, "there was no written agreement between plaintiff and defendant in which a 'prophylactic provision' could have been inserted." (Id., at 1045.)

The dissent disagreed, writing that "if assurance that the collateral selection agent was taking a net long position in the CDO was as critical to ACA's commercial decision-making as it now claims, ACA surely could have and would have conditioned its financial guaranty on the defendant or the agent entering into an agreement containing written representations and covenants." (Id., at 1049.)