OpenSea Faces Class-Action Lawsuit Over Alleged Unregistered Securities Sales

According to Cointelegraph, two OpenSea users have filed a class-action lawsuit in the United States against the NFT marketplace, alleging it sells unregistered securities contracts. Anthony Shnayderman and Itai Bronshtein filed the suit on September 19 in a Florida federal court, claiming that NFTs they purchased on OpenSea, including those from the Bored Ape Yacht Club collection, are worthless due to their illegal nature. The plaintiffs pointed to OpenSea’s recent disclosure of a Wells notice from the Securities and Exchange Commission (SEC), which they argue indicates that OpenSea may be liable for facilitating the exchange of unregistered securities. A Wells notice is a warning that the SEC has conducted an investigation and may bring an enforcement action against the recipient. The lawsuit also references successful SEC actions against NFT projects Stoner Cats 2 and Impact Theory, where the regulator deemed the NFTs as unregistered securities sales. Shnayderman and Bronshtein argue that the Howey test, which defines securities, shows that the NFTs they bought on OpenSea were investment contracts under US securities laws. They allege that these NFTs represented an investment in a common enterprise with a reasonable expectation of profits derived from the efforts of others. The suit claims that OpenSea’s NFT listings were deceptive and misled the plaintiffs into purchasing worthless and unlawful unregistered securities. It also alleges that OpenSea breached a user warranty by failing to moderate its exchange for unregistered securities. Additionally, the plaintiffs accuse OpenSea of unjust enrichment by charging fees and accepting funds from the sale of unregistered securities. In a statement, Adam Moskowitz, managing partner of The Moskowitz Law Firm and counsel for Shnayderman and Bronshtein, emphasized the need for a well-regulated environment for selling NFTs. He expressed a willingness to work with OpenSea to develop a better process for both consumers and the crypto industry. OpenSea has not yet responded to a request for comment.