The language in the lawsuit is very similar to the stolen ape lawsuit filed February 18, which is not surprising because the plaintiffs are using some of the same lawyers. Vice interviewed one of the lawyers, and determined that the somewhat odd wording refers to the issue in which OpenSea users didn't realize their old listings of NFTs at lower prices were still active.
Another $1 million lawsuit is filed against OpenSea for stolen apes
A third "stolen ape" lawsuit was filed against OpenSea, alleging that Opensea's "security vulnerability allowed an outside party to illegally enter through OpenSea's code and access Plaintiff's NFT wallet, in order to sell Plaintiff's Bored Ape at a fraction of the value." Someone was able to buy the plaintiff's Bored Ape for 24.89 ETH (~$60,000) — much less than the 135 ETH (~$332,000) the plaintiff had recently listed it at. The scammer then quickly flipped the NFT for resale for 92.9 ETH (~$225,000) within an hour.
NFT collector files $6 million lawsuit against OpenSea, LooksRare, and the company behind Bored Apes for not doing more to discourage thefts
Robert Armijo is the former owner of three valuable NFTs — one Bored Ape and two Mutant Apes — which he bought for a total of around $300,000 between November 2021 and January 2022. On February 28, he filed a lawsuit against the NFT marketplaces OpenSea and LooksRare, as well as the company behind the Bored and Mutant Ape projects, Yuga Labs. The lawsuit was filed only ten days after another former Bored Apes owner filed suit against OpenSea for allegedly failing to secure their platform.
On February 1, he was the victim of a phishing attack in which he lost the three pricey NFTs. He had agreed to trade one of his Mutant Apes for another NFT he was interested in, but he and the prospective buyer had to perform the transaction through a platform other than OpenSea or LooksRare because it was a swap rather than a purchase for ETH. Armijo turned down several suggestions of platforms by the other party, saying he was unfamiliar with them, and instead suggested one of his own choosing. However, the other party was still able to send him a trading link that appeared to be from the site he had suggested, and Armijo approved what turned out to be an illegitimate transaction that allowed the other party to take all three of his NFTs for nothing in return. Armijo alleges that although he quickly realized he'd been phished, he was not able to get OpenSea or LooksRare to freeze sales of the stolen NFTs, and they were flipped for resale within days.
Armijo alleges that OpenSea and LooksRare have "utterly failed to protect consumers or do anything to disincentivize or stop the thefts" because they profit from each trade on their platform. He has also named the company behind the Apes NFTs, Yuga Labs, in his lawsuit, stating that they have not done enough to disincentivize theft by failing to "monitor its proprietary and exclusive ape community by denying entry to individuals whose access is predicated on a stolen BAYC NFT". Once again, my heart goes out to the judge hearing this case.
In terms of damages, Armijo states he has been "deprived not only of the significant monetary value of the NFTs he owned, but also [has been] strip[ped] of his membership in the BAYC community and the commercialization rights he possessed in his underlying Bored Ape and Mutant Ape images", and as such is seeking damages "in no event less than $6 million". Interestingly, the name Robert Armijo also appears as a defendant in SEC charges from June 2021, where the individual is alleged to have unlawfully sold securities managed by an organization also alleged by the SEC to be a Ponzi scheme. It's not immediately clear if this is the same person, or someone who shares a name.
- Armijo v. Ozone Networks, Inc. d/b/a Opensea, CourtListener
- "SEC Charges Additional Unregistered Brokers Who Sold EquiAlt Securities to Retail Investors", U.S. Securities and Exchange Commission
- "SEC sues La Mesa financial adviser over selling investments linked to a Ponzi scheme", The San Diego Union-Tribune
Former owner of a reportedly stolen Bored Ape files million-dollar lawsuit against OpenSea
Businessman Timothy McKimmy is the former owner of Bored Ape #3475, an NFT he purchased in December for 55 ETH (then about $232,000). In a lawsuit against OpenSea, McKimmy alleged that on February 7, a "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". The Bored Ape was purchased for 0.01 ETH (about $30), then flipped by the alleged thief within hours for 98.9 ETH (a bit over $300,000). McKimmy alleges that OpenSea knew about the reported vulnerability, and failed in their duties to him as a customer by not informing customers of the issue, or shutting down the platform while it was reportedly vulnerable. The lawsuit further argues that because Bored Ape #3475 has a higher "rarity score" than the one supposedly purchased by Justin Bieber for 500 ETH ($1.3M) in January, the value of #3475 is "arguably in the millions of dollars and growing as each day passes". The lawsuit seeks "any and all damages to which [McKimmy] 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."
- McKimmy v. OpenSea on CourtListener
- Etherscan records for the Bored Ape NFT