- The plaintiff, Timothy McKimmy, says he lost Bored Ape #3475 after an exploit on OpenSea.
- According to McKimmy, OpenSea was aware of the bug but did nothing to stop it.
- OpenSea previously paid $1.8 million in refunds to users affected by the listings error.
Texas resident Timothy McKimmy has filed a lawsuit against top NFT marketplace OpenSea in a Texas federal court. A report unveiled this news earlier today, citing a complaint filed on February 18. In the complaint, McKimmy claims a listing error on OpenSea saw him sell his non-fungible token (NFT) in the Bored Ape Yacht Club (BAYC) collection for 0.01 Ether (ETH), worth approximately $26.
According to the plaintiff, OpenSea knew about the bug that caused the listing error and allowed hackers to purchase NFTs below their floor prices. Despite the media covering this attack, McKimmy claims OpenSea did nothing to stop the malicious actors.
Accusing OpenSea of negligence and breach of contract, McKimmy said,
Instead of shutting down its platform to address and rectify these security issues, Defendant continued to operate. Defendant risked the security of its users’ NFTs and digital vaults to continue collecting 2.5% of every transaction uninterrupted.
He pointed out that he is the rightful owner of Bored Ape #3475 and had not listed the NFT for sale. As such, McKimmy maintains that his Bored Ape was stolen before the buyer resold it for 99 ETH (approximately $250,000).
McKimmy added that his NFT was in the 14th percentile regarding rarity. He claimed that this trait makes Bored Ape #3475 rarer than Bored Ape #3001, which Justin Bieber recently purchased for $1.3 million. To this end, the plaintiff is seeking the return of his NFT and/or damages of over $1 million.
OpenSea’s investigations amounted to nothing
McKimmy, whose LinkedIn profile describes him as the CEO of Texco Metals, said he resolved to sue OpenSea after attempts to get to the bottom of the issue with OpenSea proved futile. He alleges that OpenSea dismissed his case, saying that it would investigate the theft of his NFT and failed to do anything more.
It is worth noting that OpenSea paid $1.8 million in refunds to users that lost NFTs in the exploit. Nonetheless, it remains unclear how the marketplace decided the amount to reimburse each affected user seeing as the stolen NFTs did not have the same price.
McKimmy’s complaint cited talks in NFT forums, where some users claimed OpenSea has been approaching victims of the exploit and offering them the floor prices of the NFTs they lost even if they were worth more. He added that the company coerced users willing to accept this offer to sign non-disclosure agreements.
