dissenting:
I respectfully dissent.
While I do not dispute that the majority’s analysis is a permissible interpretation of the law of this circuit, I do not believe that the result reached by the majority is dictated by our prior decisions. Specifically, I believe that there exists an equally viable, but narrower, interpretation of the American Bank decision which, if adopted, would entirely distinguish the present set of facts from that case. Consideration of the equities of this case and the broader public policy ramifications of our decision compels me to support this alternative interpretation.
As the majority points out, the key language of the American Bank decision, for purposes of this case, is in the initial opinion of the district court which, after remand on other grounds, was ultimately affirmed by this court. Holding that the shareholders of the bank were not entitled to assert derivative claims following a legitimate transfer of the underlying causes of action from the bank to the FDIC, the district court stated that the FDIC was “the owner of, and sole party entitled to assert, such causes of action.” 412 F.Supp. at 308 (emphasis added). While this language would facially appear to have direct application in the present case, the holding of American Bank cannot be divorced from the context of that litigation.
In American Bank, the FDIC had initiated, and was actively pursuing, litigation based on the causes of action which had been transferred to it by the bank. During the pendency of the FDIC’s actions, shareholders of the bank sought to commence derivative actions based on identical claims. The district court’s ruling in American Bank was made in response to a motion for declaratory judgment by the FDIC for a determination by the court that the FDIC was the sole party entitled to proceed with the litigation. In this context, the district court’s finding that the FDIC was the “sole” party entitled to assert the claims need not necessarily be read as a ruling that the shareholders’ derivative actions had been destroyed by the transfer of the underlying claims to the FDIC. I submit that an equally viable interpretation of the statement is that, in light of the FDIC’s active pursuit of the claims, the bank’s shareholders were not entitled to simultaneously proceed with their derivative action. This interpretation is strengthened by the district court’s accompanying order which directs the FDIC to “initiate all proper causes of action ... as soon as reasonably practicable.” Id. at 309.
Under this reading of the decision, American Bank does not bar the shareholders’ suit in the present case. The RTC has failed, to date, to pursue the claims in question. The RTC indicated in its submissions to the trial court that it intended to take action or decline to take action within *309180 days. As of the oral argument in this ease, however, nearly eight months after the district court’s decision, the RTC asserts only that it “is investigating the actions of the directors, officers and professionals of SeaBank.” Appellee’s Br. at 4. Unless and until the RTC decides to pursue its claims, American Bank, under the more narrow construction proposed above, does not preclude a derivative action.
I am equally unpersuaded by the cases cited by the majority from outside this circuit. Crossland merely stands for the unremarkable proposition that a losing legal claim of a corporation cannot successfully be pursued derivatively by one of its shareholders. See 711 F.2d at 720-21. Tucker, from a Louisiana state appellate court, cites no authority to defend its conclusory holding that a corporation’s voluntary or involuntary disposal of a cause of action deprives its shareholders of the right to derivatively assert that claim. See 145 So.2d at 369.
I would hold that this case is governed by the law of assignment. A bedrock principle of assignment law is that an assignment can create no greater rights in the assignee than were possessed by the assignor. See, e.g., DuPont de-Bie v. Vredenburgh, 490 F.2d 1057, 1061 (4th Cir. 1974). In the present case, RTC-Receiver held possession of SeaBank’s potential causes of action against its officers, directors, and other employees. These claims were limited, however, in the sense that they were subject to derivative enforcement by SeaBank’s shareholders. See Womble v. Dixon, 752 F.2d at 82; Landy v. FDIC, 486 F.2d 139, 148 (3d Cir.1973) (“A derivative suit by shareholders should not be precluded merely because a bank is in ... receivership.”), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974).
The majority opinion asserts that the sale of SeaBank’s causes of action from RTC-Receiver to RTC-Corporate extinguished the shareholders’ derivative rights. However, this would mean that RTC-Corporate, the assignee, attained by the transaction claims that were unencumbered by the limitation imposed on RTC-Receiver, the assignor. This result violates the fundamental assignment principle expressed in DuPont de-Bie in a manner which I am unprepared to accept.
Turning to the equities of the case, I discern no negative consequences in allowing the shareholders to go forward with their derivative suit when RTC-Corporate, the owner of the underlying claims, has decided, for whatever reason, not to pursue them. The trial judge referred to this as the shareholders’ desire to “have their cake and eat it, too,” i.e., receive consideration for the sale of the causes of action, and then profit from the independent pursuit of the claims. However, under the terms of the contract of sale of the claims, SeaBank receives the excess over a certain figure of any recovery made by the RTC against the officers, directors or employees of the bank. It is reasonable to assume that Sea-Bank bargained for this consideration with the expectation that all legitimate causes of action would be fully litigated. Allowing the bank’s shareholders to seek their day in court on those claims they believe to be legitimate, but which the RTC has failed to pursue, merely ensures that SeaBank receives the full measure of the consideration for which it bargained.
I note also that any recovery obtained by the shareholders as a result of the derivative action will accrue to the benefit of SeaBank. The shareholders will not personally profit until all outstanding claims of creditors of the bank have been satisfied. It seems to me to be good public policy to allow private individuals to expend their own resources to recover funds that will reduce the insolvency of a federally insured institution.
A final argument against the majority’s position involves the nature of derivative actions. A shareholders’ derivative suit is a device designed to allow the owners of a corporation to bring claims on behalf of the company that the company’s management is unwilling to bring (frequently, as in this case, because the claims are against directors or officers of the corporation). Accordingly, it is illogical to adopt the majority’s position and permit the sale of a cause of action, a decision fully within the discre*310tion of the management, to deprive the shareholders of their right to bring a derivative action. Granting management the power to extinguish unilaterally the shareholders’ derivative rights fails to acknowledge the role of the derivative action in maintaining managerial accountability.
For the foregoing reasons I would hold that, as long as a corporation remains in existence, the corporation's assignment of legal claims to another entity does not deprive shareholders of that corporation from asserting those claims derivatively if the owner of the claims fails to do so directly. In this case, I would hold that unless and until RTC-Corporate decides to pursue the actions against SeaBank’s directors, officers and other employees, SeaBank’s shareholders have the right to derivatively pursue the claims.