Less than a week after Move filed an amended motion for a preliminary injunction in its ongoing lawsuit against CoStar, the commercial listing giant has shot back.
In a brief filed on Wednesday, CoStar claims Move is seeking the injunction because Move’s Realtor.com is losing market share to CoStar’s Homes.com. This comes after Move revealed that James Kaminsky, the former Move employee and current CoStar employee at the center of the legal battle, allegedly accessed 40 stolen documents.
“As confirmed by Kaminsky’s testimony, Move’s CEO considers CoStar an ’existential threat.’ Rather than compete on the merits, Move is weaponizing litigation to wage a PR campaign against a rival that is accelerating past Move in the marketplace,” the filing stated. “That Move’s desperate times have given rise to such desperate measures does not warrant injunctive relief.”
According to CoStar, Move’s motion for a preliminary injunction is unreasonable because Kaminsky “minimally accessed five unsecured documents related to Move’s ’News and Insights’ business after he was laid off by Move.”
In the filing and in declarations from forensic experts, CoStar states that Kaminsky never had the documents in question in his CoStar account and that they were never sent to anyone at CoStar.
The defendant also notes that Move has been unable to show that Kaminsky accessed the documents on behalf of CoStar or that CoStar knew of his access to the documents.
According to declarations made by Kaminsky, he accessed the documents in question “in January and February to aid in his job search after Move laid him off.” He did so again “in March and April to enable him to contact certain former Move colleagues after he started with CoStar, and briefly between May 31st and June 3rd when he was browsing files in connection with a personal tax issue.”
Additionally, CoStar claims that “Move cannot identify any change CoStar has made to its business or damage it has suffered as a result of Kaminsky’s access to the five Move documents.”
The filing also alleges that Move did not treat its discovery of Kaminsky’s access to these documents with the sense of urgency it is deploying in its motion for preliminary injunction, as Move waited a month after discovering Kaminsky’s access before filing its lawsuit.
CoStar also took issue with Move’s refusal to engage in an expedited discovery, which CoStar claims would have “underscored what Kaminsky told several colleagues at Move, including two managers, months ago: he is not working on, assigning, or editing news, rather, his work involves editing articles regarding New York condos.”
“Instead, Move buried its head in the sand — and refused to take the discovery any legitimate trade secret plaintiff would have taken — because the facts contradicted the case it was publicizing in the media,” the filing states.
The Andy Florance-helmed CoStar also claims that an injunction is not necessary as “at a fundamental level, there is nothing to enjoin: neither CoStar nor Kaminsky have used or are using Move’s documents.
“An injunction in this case is therefore unnecessary and would only reward Move for filing and publicizing a suit built on falsehoods about CoStar,” the filing adds. “CoStar would certainly face a hardship based on the inevitable publicity that would accompany an injunction, amplified by Move’s continuing PR campaign around this lawsuit (a campaign that has already resulted in Move issuing, and then retracting, a false press statement about this Court’s views of the case expressed during the first hearing).”
In addition to its reply, CoStar also filed sealed declarations from forensic experts, several CoStar employees who work with Kaminsky (including two supervisors) and Kaminsky himself.
In a statement emailed to HousingWire, CoStar general counsel Gene Boxer wrote that “Move has tried to weaponize litigation against CoStar and a former employee.” He called these actions “desperate,” and he recommended that Move instead focus its efforts on the class action-lawsuit recently filed by brokers who claim that Move and other parties sold them fake leads.
“To be clear, CoStar has never had interest in Realtor.com’s strategies or alleged trade secrets, as its ’lead diversion’ tactics are anathema to Homes.com’s agent and user-friendly ‘your listing, your lead’ model. Move’s lawsuit is based on false, and now shifting, premises,” Boxer wrote.
“To start, Move filed a case accusing CoStar of using Move documents to build a rival news business. This accusation was completely false, as we said publicly at the time. Nothing more than a PR stunt,“ he added. “As Move knows, CoStar doesn’t have any of those documents, and certainly hasn’t used them.
“When we wrote to Move’s lawyers threatening sanctions, Move quickly backpedaled. No wonder: making false claims in federal court gives rise to serious consequences. Move then tried to salvage its case with an even weaker new theory: admitting that —in fact — no one at CoStar is using any stale Move documents, but maybe, just maybe, an employee who edits descriptions of New York condos might use documents he doesn’t have, to do a job he doesn’t have: directing CoStar’s search engine optimization.
“This is speculative nonsense. CoStar has, and has never had, access to Move’s five supposed trade secret documents. Pretending we do, pretending Kaminsky has a different job, and pretending that a handful of stale and unsecure Move documents are trade secrets, is the weakest case imaginable.”
Move told HousingWire that it does not comment on pending litigation.
