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Stolen Bored Apes Yacht Club NFT owner sues the OpenSea exchange with "my Bored Ape is rarer than Justin Bieber's" argument

BAYC's NFT collection at the OpenSea platform (image: OpenSea)
BAYC's NFT collection at the OpenSea platform (image: OpenSea)
One Timothy McKimmy has filed a lawsuit against the OpenSea NFT exchange platform claiming that they had their pricey Bored Ape Yacht Club series NFT stolen without any repercussions. The Bored Ape #3475 NFT, they argue, is rarer than Justin Bieber's US$1.3 million Bored Ape, while demanding compensation.

Recently, the identities of the Bored Ape Yacht Club (BAYC) NFT series co-creators were finally revealed, resulting in even more special BAYC collection entries uploaded on the OpenSea NFT exchange platform. A number of Bored Apes are in the possession of celebrities like Shaquille O’Neal or Eminem, explaining the popularity and illogical pricing of this particular NFT series. Justin Bieber, for instance, is known to have bought at least two - the Bored Ape #3001 NFT at the price of 500 ETH (~US$1.35 million), and a rarer Bored Ape #3850 for the 166 ETH equivalent.

Recently, the OpenSea NFT exchange was hacked in what its CEO believes was a phishing attack and US$1.7 million worth in ETH were later detected in the suspect's crypto wallet, allegedly from selling the stolen NFTs. One of the victims of such OpenSea security breaches turned out to be a Bored Ape NFT owner who just filed a lawsuit against the platform (PDF) suggesting negligence and demanding millions in damages by claiming that their Bored Ape #3475 NFT is "in the top 14% of rarity" and actually worth more than Justin Bieber's Ape:

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). Essentially, OpenSea’s vulnerabilities allowed others to enter through its code and force the listing of an NFT. This is through no fault of the owner.

After this forced entry through OpenSea code, and immediate purchase/sale, it was then immediately resold at 99 ETH, which is still vastly below value, based on the rarity of the Bored Ape. For example, Justin Bieber purchased Bored Ape #3001 for 500 ETH, or $1.3 million at the time of the transaction. Bieber’s Bored Ape has a rarity score of only 53.66 and a rarity rank of #9777. In contrast, Plaintiff’s Bored Ape has a rarity score of 138.52 and a rarity rank of #1392. It is in the top 14% rarity, and it is significantly rarer than Bieber’s. Thus, Plaintiff’s Bored Ape’s value is arguably in the millions of dollars and growing as each day passes...

Defendant claimed to be “actively investigating” the issue, yet as of the filing of this Complaint, Defendant has failed to reverse the transaction, return the Bored Ape, and/or provide any adequate remedy. Defendant’s platform is no stranger to controversy. On its Twitter account on January 27, 2022, Defendant revealed over 80% of items created with its minting tool were “plagiarized works, fake collections, and spam.” This is in addition to numerous reports of security breaches.

The "Defendant" listed here is none other than the whole OpenSea platform which plaintiff Timothy McKimmy argues has been less than helpful in trying to find a remedy for their stolen BAYC NFT. Such lawsuits are only bound to increase in volume now that NFT scams are proliferating, so keeping an eye on the case's development as it goes through the court system could result in a ruling precedent for the increasingly murky business of NFT transactions and rightful ownership.

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Source(s)

Bloomberg (paywall)

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> Notebook / Laptop Reviews and News > News > News Archive > Newsarchive 2022 02 > Stolen Bored Apes Yacht Club NFT owner sues the OpenSea exchange with "my Bored Ape is rarer than Justin Bieber's" argument
Daniel Zlatev, 2022-02-23 (Update: 2022-02-23)