- Timothy McKimmy claims that his Bored Ape was sold out from under him for a fraction of its value.
- A Texas man is suing OpenSea for damages after an inactive listings bug allowed his Bored Ape to be purchased for only 0.01 ETH ($26 at current prices) earlier in February.
According to the lawsuit, Timothy McKimmy, the previous owner of Bored Ape #3475, is seeking “the return of the Bored Ape…and/or damages in excess of $1 million.”
McKimmy claims his ape was “stolen” on February 7 as a result of a bug that allowed attackers to purchase NFTs at previously listed prices, which were frequently significantly below market value.
More information: An OpenSea bug enables attackers to obtain a substantial discount on popular NFTs.
McKimmy claims his non-fungible token (NFT) was worth up to $1.3 million, based on the ape’s 14th percentile rarity score and the $1.3 million sale of a much lower rarity ape allegedly purchased by Justin Bieber.
At the time of writing, McKimmy’s former ape is available on OpenSea for 225 ETH, or approximately $592,000 USD.
The lawsuit is the first of its kind involving this type of exploit, but it may be less legitimate than it appears. Some of the lawsuit’s key information is incorrect, as pointed out by Twitter user @exlawyernft.
For example, McKimmy listed the defendant in the case as “OpenSea,” but the marketplace’s legal name is Ozone Networks.
Ozone Networks is also incorporated in Delaware, which the plaintiff fails to mention in his complaint. In addition, the address for the company’s New York office is incorrect.
4) Let's get to the first defect in the pleading… The defendant is "OpenSea". However, from about 2 seconds of research, I found that the OS's legal entity name is Ozone Networks, Inc. See here: https://t.co/leebPlUF5i
— exlawyer.eth/tez (@exlawyernft) February 21, 2022
The plaintiff’s claim that “OpenSea’s vulnerabilities allowed others to enter through its code and force the listing of an NFT” is at the heart of the lawsuit.
This is the claim McKimmy will have to prove in order to win the case if it ever gets to court. While winning may seem unlikely, legal experts such as @exlawyernft believe it is possible.
“I honestly think (assuming Plaintiff’s lawyers aren’t stupid) that the negligence cause is a pretty good argument,” @exlawernft wrote on Twitter. “As for breach of duty and breach of contract/implied contract, I see that as a much more difficult road to walk.”
According to the lawsuit, in addition to seeking “attorneys’ fees, costs, expenses, pre and post judgement interest,” McKimmy is also requesting that OpenSea “pause and/or stop any listing or sale of the Bored Ape in question.”
Disclaimer: These are the writer’s opinions and should not be considered investment advice. Readers should do their own research.