Justices Kennedy and Alito expressed concern that today there are new categories investors who are very different from the person “at home reading the Wall Street Journal,” and who do not rely on the efficiency of the market in choosing their investments (note that when the clip begins Justice Kennedy says that “this has produced,” which references the fast trading that can happen today with real-time communication).  Boies counters with an important reminder:  even if there are investors who do not rely on market efficiency, the fraud-on-the-market theory is a rebuttable presumption.  Although a judge will presume that an investor relied on an efficient market in purchasing stock, that presumption can be countered by evidence that the investor knew about the misrepresentation at the time they purchased the stock and purchased it anyway.