The two shareholder-appellants in this case believe that the modest settlement, half of which will be paid to counsel, exemplifies this problem. Their failure to become parties prevents us from considering this contention, for the possibility that a district court's judgment is erroneous does not dispense with the need for an appeal by a party. One court of appeals has held, despite Marino, that a shareholder need not become a party in order to appeal from the final decision in derivative litigation. The third circuit conceived of the question as whether the shareholder has standing, which is misleading. Standing means injury in fact, and a reduction in the market price of one's stock is injury.
Parties are a subset of injured persons.
Equating injury with party status is exactly the approach disapproved by Marino. The third circuit thought that shareholders in derivative actions should be treated like class members in class actions, and it permitted the shareholders to appeal because it permits class members to appeal. But in this circuit, which requires class members to intervene if they want to appeal, similar treatment of shareholders is ordained. We overrule Tryforos to the extent it permits non-party shareholders to appeal in actions under Rule 23.1, and we disagree with the conclusion of Bell Atlantic. Appellants tell us that they relied on Asgrow Seed and Tryforos when deciding not to intervene as parties and implicitly ask us to defer the effect of any decision to overrule their holdings.