DITECH FINANCIAL LLC, F/K/A GREEN TREE SERVICING, LLC, Appellant,
SANFORD BUCKLES, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, Respondent.
question pursuant to NRAP 5 concerning the application of NRS
200.620. United States District Court for the District of
Nevada; Gloria M. Navarro, Chief Judge.
Roca Rothgerber Christie LLP and Daniel F. Polsenberg and
Joel D. Henriod, Las Vegas; Brooks Hubley LLP and Michael R.
Brooks and Gregg A. Hubley, Las Vegas; Bradley Arant Boult
Cummings, LLP, and Elizabeth A. Hamrick, Michael R.
Pennington, and Scott Burnett Smith, Huntsville, Alabama, for
& Krieger, LLC, and David H. Krieger, Las Vegas;
Kazerouni Law Group, APC, and Abbas Kazerounian and Michael
Kind, Las Vegas, for Respondent.
Peterson Baker, PLLC, and Tamara Beatty Peterson, Las Vegas,
for Amicus Curiae.
THE COURT EN BANC.
200.620 prohibits a person from recording a telephone call
unless both parties participating in the call consent to the
recording. In response to a certified question submitted by
the United States District Court for the District of Nevada,
we consider whether NRS 200.620 applies to telephone
recordings made by a party outside Nevada who uses equipment
outside Nevada to record telephone conversations with a
person in Nevada without that person's consent. We answer
the certified question in the negative, thereby holding that
NRS 200.620 does not apply to the recording of interstate
calls when the act of recording takes place outside Nevada.
AND PROCEDURAL HISTORY
original proceeding arises out of a class action suit brought
by respondent Sanford Buckles against appellant Ditech
Financial LLC in the United States District Court for the
District of Nevada. Ditech, a Delaware limited liability
company, is a home-mortgage servicer that was headquartered
in Minnesota at the time Buckles initiated the underlying
litigation. Although Ditech is now headquartered in Florida,
it has customer call centers equipped to record telephone
calls in Arizona and Minnesota. Buckles is a Nevada resident
whose home mortgage is serviced by Ditech. In his complaint,
Buckles alleges Ditech violated NRS 200.620 by unlawfully
recording certain telephone conversations without
moved to dismiss the complaint, arguing NRS 200.620 does not
apply to telephone calls recorded by persons and on equipment
located outside of Nevada, and if NRS 200.620 does apply, the
extraterritorial application of NRS 200.620 would violate the
United States Constitution's Due Process Clause and
Dormant Commerce Clause. The federal court concluded:
If [NRS] 200.620 does not apply to recordings made outside of
Nevada by Ditech, Ditech's motion to dismiss is due to be
granted. If the statute applies to telephone recordings made
outside of Nevada by Ditech, however, this Court must decide
Ditech's constitutional challenge to the statute under
the Due Process Clause and the Dormant Commerce Clause of the
United States Constitution, The necessity of reaching these
serious constitutional questions depends upon resolution of
prior, potentially dispositive, questions of Nevada statutory
federal court therefore decided to certify a question under
NRAP 5 concerning the applicability of NRS 200.620. Because
the parties ultimately were unable to agree upon the
appropriate language of the question to be certified, the
federal court certified two questions to this court:
Plaintiffs position: Does [NRS] 200.620
apply to telephone recordings made by a party outside Nevada,
who regularly records telephone conversations with Nevada
residents, of telephone conversations with a person in Nevada
without that person's consent?
Defendant's position: Does [NRS] 200.620
apply to telephone recordings by a party outside Nevada who
uses equipment outside Nevada to record telephone
conversations with a person in Nevada without that
person's consent? If so, does that ...