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A man is suing OpenSea for $1 million over the theft of his Bored Ape NFT

February 22, 2022, 9:28 PM UTC

A Texas man is suing popular NFT marketplace OpenSea to get his Bored Ape NFT back, and asking for $1 million in damages, according to a lawsuit filed last week.

The man, Timothy McKimmy, said in the suit that his NFT Bored Ape #3475 was stolen on or around Feb. 7 because of OpenSea security vulnerabilities that “allowed an outside party to illegally enter through OpenSea’s code and access Plaintiff’s NFT wallet.” The NFT was then sold at .01 Ether, or about $30 at the time, which he claims is a fraction of its value.

McKimmy’s Bored Ape was listed on OpenSea for 130 Ether or nearly $338,000 as of Tuesday. 

McKimmy alleges in the lawsuit that OpenSea was aware of security issues on its website and didn’t take the proper steps to inform its users or put adequate safety measures in place in a timely manner. 

“OpenSea knew about security issues and continued operating, instead of shutting down its platform to address them,” Ash Tadghighi, an attorney for McKimmy, wrote in a statement to Fortune. “What happened to our client is not an isolated incident. Our client hopes this lawsuit will force OpenSea to address the depth of its security vulnerabilities, so this does not happen to anyone else. OpenSea needs to rectify the situation.” 

OpenSea did not immediately respond to Fortune’s request for comment. 

McKimmy’s stolen NFT is part of the Bored Ape Yacht Club collection, a popular series of 10,000 unamused cartoon digital apes. The collection has attracted celebrity buyers like Golden State Warriors guard Steph Curry, and pop star Justin Bieber, among others. McKimmy says in his lawsuit that his NFT, Bored Ape #3475, is in the “top 14% rarity,”  with a 138.52 rarity score, meaning it would be worth more than Justin Bieber’s, whose Bored Ape has a rarity score of 53.66, according to the lawsuit. Bieber purchased his ape NFT in late January for 500 Ether, or about $1.3 million at the time of the transaction, according to the filing. The most distinguishing factor of Bored Ape #3475 is its blue baby bonnet, which is found on only 2% of the 10,000 NFTs in the collection, according to Gizmodo.

McKimmy says in the suit that he reached out to OpenSea multiple times before he filed his lawsuit in an attempt to get his NFT back, but to no avail.

OpenSea said it was “‘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,” the filing reads. The current owner of Bored Ape #3475 also refused to turn it over to McKimmy, according to the filing. 

OpenSea has experienced several issues with security in the past two months. In late January it reimbursed $1.8 million to users who, through a loophole, had their NFTs purchased at much lower valuations and then resold. OpenSea cofounder Devin Finzer said that the company is investigating a phishing scandal over the weekend that robbed some users of their NFTs and netted the thief at least $1.7 million in the cryptocurrency Ether.

McKimmy’s Bored Ape NFT was purchased by a user named dextermoonshine for .01 Ether 15 days ago. It sold to an OpenSea user named JackkW around the same time for 98.9 Ether, according to the OpenSea website

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