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In a recent state appeals court ruling, a Chicago lawyer accused of allegedly cursing and displaying improper behavior during a performance review won a $300,000 defamation lawsuit against his employer, which fired him after the review. The Illinois 1st District Appellate Court, an intermediate court, ruled that the lawyer was defamed and upheld a $300,000 jury verdict favoring the plaintiff, Daniel Popko, a trial specialist for CNA Financial Corp. who was fired in 1999 after nearly 16 years on the job. The appeals court rejected CNA’s argument that what happened during a private corporate meeting — in this case the performance review — did not warrant a defamation claim because it was never printed. “Their main argument was, ‘What’s said in the corporation, stays in the corporation.’ But that’s not the law in Illinois, nor is it the law in most states,”said the plaintiff’s attorney, Michael Rathsack, a solo practitioner in Chicago. CNA’s attorney, Allison Blakley, a partner in Sonnenschein Nath & Rosenthal’s Chicago office, could not be reached for comment. According to Rathsack, Popko was fired after a supervisor accused him of using profanity and becoming belligerent during a performance review that did not render a favorable evaluation. Popko has consistently denied the allegation, he said. “They said that Dan [Popko] made these bad statements and Dan said he did not.” Rathsack said. “In this case, the jury believed Dan.” According to Rathsack, a Cook County jury awarded Popko damages in January 2003. The defendants unsuccessfully filed a post-trial motion, then filed for the appeal with the 1st District in Chicago. At the appellate level, CNA argued that it was protected by a state “nonpublication rule,” which protects intracorporate communication from defamation, Rathsack said. The appeals court ruled that Illinois has no such law. CONSTITUTING PUBLICATION The appeals court found that state and federal courts in Illinois “recognize that communication within a corporate environment may constitute publication for defamation purposes.” Rathsack said one of the key arguments in the case was showing that the defendants never got Popko’s side of the story. “This whole case came down to the fact that nobody checked on the accuracy of the statements. If they had simply called Dan in and got his side of the story, that probably would have been the end of this case,” Rathsack said. Popko now works for Chicago’s Bruce Farrel Dorn & Associates. Popko v. Continental Casualty Co., No. 1-03-3389.

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