Man takes OpenSea to court over his stolen Bored Ape (BAYC) NFT

Key Takeaways

• A former Bored Ape Yacht Club (BAYC) NFT owner has taken OpenSea to court
• Timothy McKimmy is suing the largest NFT marketplace in damages for the theft of his Ape #3475
• Last week OpenSea fell prey to a phishing attack. At least 32 holders lost their nonfungible tokens

YEREVAN (CoinChapter.com) – In an interesting turn of events, OpenSea may now have to appear in court as a defendant in a case. Bored Ape Yacht Club (BAYC) holder Timothy McKimmy is dragging the largest NFT marketplace to court. He filed a lawsuit in the United States District Court in Texas against OpenSea. His demand? For the court to hold the platform responsible for the theft of his BAYC NFT #3475.

Victim of an OpenSea hack is suing for the loss of his Bored Ape.

Case is McKimmy v. OpenSea, No. 4:22-cv-00545 filed 2022 Feb 18

This doesn't have anything to with this past weekend's $200M hackhttps://t.co/RaW0eYGzsw pic.twitter.com/k1a4qygipH

— David Michaels (@davidmichaels) February 22, 2022

“Plaintiff is the rightful owner of Bored Ape #3475. On or about February 7, 2022, Plaintiff’s Bored Ape was stolen, listed, and sold to another individual on Defendant’s platform. Plaintiff did not list his Bored Ape for sale on the marketplace. Defendant’s security vulnerability allowed an outside party to illegally enter through OpenSea’s code and access Plaintiff’s NFT wallet, in order to list and sell Plaintiff’s Bored Ape at a literal fraction of the value (at .01 ETH),” 

the lawsuit claims.  

OpenSea recently suffered a phishing attack during which 32 collectors lost their NFTs valued into millions. Angered by the lapse on the website’s part, McKimmy wants OpenSea to take responsibility. However, CEO Devin Finzer has denied responsibility for the breach. 

As per records, McKimmy purchased Bored Ape #3745 on December 3rd, 2021 for 55 ETH or $232,000 at the time. However, thanks to the latest phishing attack, he lost his Ape for around just $32. That is peanuts in front of other Bored Ape Yacht Club (BAYC) NFTs that sell for millions.

In a further disappointing move, the attacker sold his BAYC Ape for 98 ETH or over $308,000.

Recommended: NFT Worlds overtakes Bored Ape Yacht Club (BAYC) in OpenSea sales volume

Protecting investors through a lawsuit against OpenSea

As stated above, McKimmy lost his Bored Ape #3475 NFT. Though he has not been able to get his NFT back, OpenSea has put out a warning on the Ape’s page. Through his suit, McKimmy hopes to protect the interests of NFT holders on OpenSea. Demanding a jury trial, he further asks for his ape back along with a compensation of over $1 million.

“Plaintiff seeks damages for the loss of the Bored Ape, seeks any and all damages to which he may be entitled, including the return of the Bored Ape, damages equivalent to the valuation of the Bored Ape, and/or monetary damages over $1,000,000. Plaintiff seeks attorneys’ fees, costs, expenses, pre and post judgment interest, and injunctive relief requiring Defendant to pause and/or stop any listing or sale of the Bored Ape in question,” 

the suit reads.

However, some already point out proving OpenSea was responsible may be hard.

Going to be hard to prove any wrongdoing on OPENsea's part. When you had to give permission to the crook to steal our stuff and opensea was just as much the victim. Best they can hope for is to trace the sales to a coinbase wallet or some other and see who withdrew the money.

— RicksCEO.eth (@RicksCEO) February 21, 2022

Recommended: OpenSea users lose $1.7M worth of nonfungible tokens (NFT) in a phishing attack

If you have to sue OpenSea, get better lawyers!

Before the case even makes it in front of the jury, people have already punched holes in it. As it turns out, neither McKimmy nor his lawyers DALY & BLACK, P.C, and the Tadghighi Law Group PLLC did their homework properly.

As Twitter user ‘exlawyernft’ pointed out, some of the information given in the lawsuit is incorrect. For example, the plaintiff has filed a case against OpenSea, but the company’s legal name is Ozone Networks.

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

In addition, the address of the organization is also wrong. 

“The address is wrong! This is seriously a rookie mistake… If you google “Open Sea headquarters”, you get the 24th Street address, but it’s wrong…You can find OS’s actual address on the TOS page I linked above: Park Avenue OS has filed a foreign corp cert in both NY and CA and both of those match the Park Ave address,” ex-lawyer further states.

McKimmy may have a chance to win the suit. However, he will need to make sure his legal team faces the jury better prepared.