See Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 522–23, 67 S.Ct. 828, 831, 91 L.Ed. 1067, 1073 (1947) ("The [derivative action] which such a plaintiff brings before the court is not his own but the corporation's. It is the real party in interest and he is allowed to act in protection of its interest somewhat as a ‘next friend’ might do for an individual, because it is disabled from protecting itself."); see also Ashburn v. Wicker, 95 N.C.App. 162, 166, 381 S.E.2d 876, 879 (1989), abrogated on other grounds, Alford v. Shaw, 327 N.C. 526, 534, 398 S.E.2d 445, 449 (1990). Given that the corporation is the real party in interest, it follows that derivative actions are typically appropriate only when a corporation is unwilling or unable to litigate its claims for itself.
stock has an interest in the stock sufficient to entitle him to bring an action alleging fraudulent conveyance that affects the preservation and protection of the assets and property of the corporation); Gibson, 534 So.2d at 202, 203 (a pledgor of corporate stock when in control of the corporation has the affirmative duty to preserve the corporate assets for the benefit of the pledgee; duty of the pledgor was "to conduct his office with ordinary prudence and with all good fidelity to the end that the value of its shares be maintained"); Gustafson, 47 Wn. App. at 276-78, 734 P.2d at 952-54 (in an action regarding wrongful disposition of corporate property, a stock pledgee has standing to maintain a derivative action in order to protect her security interest); see also Giblin v. Murphy, 97 A.D.2d 668, 469 N.Y.S.2d 211, 215 (1983) (directors owe a duty of care to protect the stock interest of pledgees, and that duty is breached by "willful, wanton negligence with respect to its assets"); Ashburn v. Wicker, 95 N.C. App. 162, 165, 381 S.E.2d 876, 878 (1989) ("a pledgee of corporate stock has a sufficient beneficial interest to have standing to sue the corporation derivatively for mismanagement"), overruled on other grounds by Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990). We find these aforementioned cases, cited by Quixote, unpersuasive.
We note that the new statute, while elaborating some of the procedures set forth in N.C.G.S. 55-55, does not contain a continuing share ownership requirement. To the extent the Court of Appeals' opinion in Ashburn v. Wicker, 95 N.C. App. 162, 381 S.E.2d 876 (1989), conflicts with the instant opinion the Ashburn case is no longer authoritative. To [read a continuous ownership requirement into the statute] would create an anomalous result.