Two users of the OpenSea platform have initiated a class-action lawsuit in the United States, alleging that the prominent non-fungible token (NFT) marketplace is selling unregistered securities contracts. The plaintiffs, Anthony Shnayderman and Itai Bronshtein, filed their complaint in federal court in Florida on September 19. They argue that the NFTs they acquired, including items from the high-value Bored Ape Yacht Club collection, have become worthless due to their purportedly illegal status.
In their legal arguments, the plaintiffs referenced a recent Wells notice issued to OpenSea by the Securities and Exchange Commission (SEC), interpreting this as a clear indication of potential legal trouble for the platform. A Wells notice serves as a formal warning that the SEC has completed an investigation and reserves the right to pursue enforcement actions against the recipient.
The lawsuit also highlights previous SEC actions against specific NFT initiatives, such as Stoner Cats 2 and Impact Theory, where the regulator identified the NFTs as unregistered securities. The plaintiffs assert that the NFTs they acquired meet the criteria outlined in the Howey test, indicating they constitute investment contracts under U.S. securities laws, with an expectation of profits arising from the efforts of others.
Allegations in the suit claim that OpenSea’s listings misled the plaintiffs into acquiring these supposedly worthless NFTs, implying that the platform misrepresented its role in moderating the exchange of NFTs that could qualify as “real-world financial instruments.” Furthermore, the plaintiffs argued that OpenSea failed to adhere to a user warranty that promised to monitor its marketplace for unregistered securities.
The lawsuit also claims OpenSea has unjustly profited by collecting fees and accepting payments that were allegedly linked to the sale of unregistered securities. OpenSea has yet to comment on these allegations.
