A Former Bored Ape Owner Is Suing OpenSea for $1M, but His Lawsuit Is Riddled With Errors
Timothy McKimmy says his Bored Ape was sold out from under him for just a fraction of what it was worth.
After an inactive listings bug allowed his Bored Ape to be purchased for just 0.01 ether (ETH), or $26 at current prices, earlier in February, a Texas man is suing OpenSea for damages.
Timothy McKimmy, the previous owner of Bored Ape #3475, is seeking "the return of the Bored Ape … and/or damages over $1 million,” according to the lawsuit filed on Feb. 18.
McKimmy says his ape was “stolen” on Feb. 7 through a bug that allowed attackers to purchase non-fungible tokens (NFT) for previously listed prices, often significantly below market value.
McKimmy claims his NFT was worth upwards of $1.3 million, based on the ape’s 14th percentile rarity score and the $1.3 million sale of an ape touting a much lower rarity that was reportedly purchased by Justin Bieber.
McKimmy’s former ape is currently on sale on OpenSea for 225 ETH, or roughly $592,000, at the time of writing.
The lawsuit is the first relating to this specific kind of exploit, but may be less legitimate than it appears. As pointed out by Twitter user @exlawyernft, some of the lawsuit’s key information is incorrect.
McKimmy, for example, listed the defendant of the case as “OpenSea,” but the marketplace’s legal identity is Ozone Networks.
Ozone Networks is also incorporated in Delaware, which the plaintiff fails to list in the suit. And the address of the company’s New York office is also listed incorrectly.
The meat of the lawsuit is centered around the plaintiff’s claim that “OpenSea’s vulnerabilities allowed others to enter through its code and force the listing of an NFT.”
This is the claim McKimmy will have to prove to win the case if it does, in fact, make it to court. While winning may be a long shot, legal experts like @exlawyernft believe it’s possible.
"I honestly think (assuming Plaintiff's lawyers aren't stupid) that the negligence cause is a pretty good argument,” @exlawernft wrote in his Twitter thread. “As for breach of duties and contract/implied contract, I see that as a much harder road to walk."
In addition to seeking “attorneys’ fees, costs, expenses, pre- and post-judgment interest,” McKimmy is also asking OpenSea to “pause and/or stop any listing or sale of the Bored Ape in question,” according to the lawsuit.
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