In a troubled economy where businesses are struggling to survive, it is no surprise that many organizations find themselves insolvent or nearly insolvent. Directors of insolvent or nearly insolvent organizations are facing the question of to whom they owe their duty of loyalty, and whose best interest must they consider when making decisions. When in the zone of insolvency, directors still owe a duty to stakeholders to act in their best interests.

Traditionally, when a business begins to flounder and take on enough metaphorical water to sink, the officers and directors can find themselves in a fiduciary relationship with the company's creditors. However, in Wisconsin, an opinion was recently published by an appellate court which determined that no fiduciary duty attaches until such time as the sinking company is both insolvent and not a "going concern". In other words, it is only when this ship has sunk that a fiduciary duty will attach.