A recent decision of the Federal District Court in Massachusetts highlights one of the problems of including a citation to a website in a brief or judicial opinion – a phenomenon colloquially known as “link rot”.
In Henning v. Wachovia Mortgage, FSB, 2013 WL 5229837 (2013), the Court dismissed Plaintiff’s predatory lending claims on preemption grounds, holding that the claims asserted by Plaintiff in his Second Amended Complaint were preempted by the Federal Home Owners’ Loan Act. Following the Court’s technical analysis of the issues presented, the Court stated, “And so, [Wachovia] wins on a technicality.” The Court then stated that should Plaintiff prove his case on the merits, the conduct of Wachovia would be shown to be “nothing short of outrageous.” The Court then observed as follows:
“A quick visit to [Wachovia’s] website confirms that it vigorously promotes itself as consumer friendly, Loans and Programs page within Home Lending, wells fargo.com, www.wellsfargo.com/mortgage/loan-programs/(last visited September 17, 2013); a far cry from the hard-nosed win-at-any-cost stance it has adopted here.”
Apparently prompted, in part, by the Bank’s pro-consumer representations in its website, the Court concluded that it would inquire as to whether the Bank wished to rely on the technicality it used to obtain dismissal of the case, or whether it wished to address the merits of the claim. To clarify the Bank’s position, the Court ordered the Bank to submit a corporate resolution as to the Bank’s endorsement of the legal position asserted in the case.
The decision highlights, among other things, the interesting and pernicious problem known as “link rot”. This slang term refers to the condition where hypertext links lead nowhere because web pages have been removed or reorganized. In the Henning case, there is no way of knowing whether the hyperlink in the Court’s decision continues to connect to the same content which prompted the judge to issue his coda and subsequent order in the case. A recent report from Harvard Law School found that 49% of hyperlinks in Supreme Court opinions no longer link to the current content. Another study found that more than 70% of URLs in the Harvard Law Review and other journals fail to connect to the original documents. Various proposals have been considered, including a central repository of links. The United States Judicial Conference has developed suggested practices, including a recommendation that web pages cited in an opinion be added as an attachment to the opinion. To date, no protocol has been generally accepted.
In the Henning case, the docket indicates that the Bank obtained a stay of the Court’s order to produce a corporate resolution, and the case is scheduled for mediation in mid-January, 2014.