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.

This raises an interesting question, as officers and directors are now free to strip all the valuable assets off the ship, throw them in a life raft and sail away as they watch the ship's mast slip below the surface of the rising tide: Who drowns in the process?

The creditors, of course.

Thankfully, this is a minority view.