MPC § 2.07: Liability of Corporations and Unincorporated Associations
What does Liability of Corporations and Unincorporated Associations (Model Penal Code) provide?
Section 2.07 addresses the criminal liability of corporations, unincorporated associations, and persons acting or under a duty to act on their behalf. The MPC provides a more refined framework for corporate criminal liability than common law, distinguishing between different types of offenses and different levels of corporate agents whose conduct can be imputed to the entity.
Source: Model Penal Code § 2.07
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Summary
Section 2.07 addresses the criminal liability of corporations, unincorporated associations, and persons acting or under a duty to act on their behalf. The MPC provides a more refined framework for corporate criminal liability than common law, distinguishing between different types of offenses and different levels of corporate agents whose conduct can be imputed to the entity.
A corporation may be convicted of an offense if the offense is a violation (non-criminal infraction) and the conduct is performed by an agent acting within the scope of employment and on behalf of the corporation; if the offense is defined by a statute that indicates a legislative purpose to impose liability on corporations and the conduct is performed by an agent acting on behalf of the corporation within the scope of employment; or if the commission of the offense was authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of employment.
The section provides an affirmative defense for offenses based on omissions: if the defendant corporation proves by a preponderance of the evidence that the high managerial agent having supervisory responsibility over the subject matter of the offense exercised due diligence to prevent its commission. This due diligence defense was a significant MPC innovation. The section also addresses personal liability of corporate agents, establishing that a person is legally accountable for any conduct they perform or causes to be performed in the name of the corporation to the same extent as if the conduct were performed in their own name.
Key Provisions
5 essential provisions of § 2.07
Corporations can be convicted of violations (infractions) when an agent acts within scope of employment on behalf of the corporation
For criminal offenses, liability requires legislative intent to impose corporate liability plus agent conduct within scope of employment
For serious offenses, commission must be authorized, commanded, performed, or recklessly tolerated by the board or a high managerial agent
Due diligence defense: corporation can show the responsible high managerial agent exercised due diligence to prevent the offense
Individual corporate agents are personally liable for conduct they perform or cause regardless of the corporate form
MPC vs. Common Law
How the MPC approach to liability of corporations and unincorporated associations differs from common law
At common law, corporate criminal liability evolved through the respondeat superior doctrine — a corporation could be liable for any crime committed by any employee acting within the scope of employment and with intent to benefit the corporation. This was criticized as overbroad because it could make a Fortune 500 company criminally liable for the acts of a low-level employee. The MPC's tiered approach is more nuanced: for serious offenses, liability requires involvement of high managerial agents or board authorization, not just any employee's misconduct. The MPC's due diligence defense also has no common law equivalent — under common law respondeat superior, a corporation's good faith compliance efforts generally did not provide a defense. Federal courts and many state courts still follow the broader common law respondeat superior approach rather than the MPC's more restrictive framework.
Exam Relevance
How § 2.07 appears on criminal law exams
Corporate liability questions typically test whether students can apply the MPC's tiered framework. A common pattern: an employee commits a crime on the company's behalf — students must determine whether the employee is a "high managerial agent" and whether the offense falls into the category requiring board-level or high management involvement. The due diligence defense also appears frequently — a corporation that had compliance programs in place may argue it exercised due diligence. Students should contrast the MPC approach with respondeat superior and be prepared to discuss which approach better serves the goals of deterrence and retribution in the corporate context.
Related Sections
Sections frequently studied alongside § 2.07
More from Article 2 — General Principles of Liability
Other sections in Article 2