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October 12, 2010 6:03 PM

Bad Burger: Steptoe Wins Court Case Against Rogue States

Posted by Brian Baxter

Steptoe & Johnson has prevailed in litigation against Washington, D.C.-based burger shop Rogue States, which D.C. Superior Court judge John Mott ruled on Tuesday was a nuisance that must reform its wayward ways or shut down immediately.

As of 5:30 a.m. Wednesday, Rogue States must have either adequately fixed its malodorous ventilation system or cease operating to comply with Mott's verdict, according to The National Law Journal's Jeff Jeffrey, who was in court when the ruling was read.

The Am Law Daily reported last week on Steptoe's litigation battle against the burger joint over smoky smelliness that has been seeping into the firm's D.C. offices. A three-day bench trial before Mott concluded last Thursday with closing arguments. The case began over the summer when Steptoe sought an injunction against Rogue States by claiming that fumes from the eatery were causing health problems for firm employees.

Steptoe general counsel Thomas Barba, who led the firm's efforts against Rogue States, released the following statement on behalf of the firm:

"Steptoe is gratified by the court's order. From the time that the restaurant started operations in February of this year, we have sought a solution that would allow the restaurant to continue its operations without harming our employees. Unfortunately, the restaurant and its landlord were unable to agree on a solution that would safeguard the well-being of our employees. Accordingly the court had no option but to order the nuisance abated and the restauarant to turn off its grill. While we wish the defendants could find a way to survive in this location and not cause a nuisance to our employees, we are committed to the health and safety of our workforce and providing our employees with a good environment to work in."

Pillsbury Winthrop Shaw Pittman litigation partner Deborah Baum, who is lead outside real estate counsel to Steptoe's D.C. landlord, Boston Properties, represented the firm at trial. (Steptoe and Boston Properties were coplaintiffs against Rogue States.)

Gary Adler, partner-in-charge of Roetzel & Andress's D.C. office, represented Rogue States in the case. Adler was unavailable for immediate comment at the time of this post, but a source familiar with the Rogue States litigation says that Adler asked Mott in court on Tuesday to stay his order, which Mott declined to do. That leaves Rogue States with the option of seeking a stay from the D.C. Court of Appeals.

A Steptoe source tells us that the smell emanating from Rogue States is "acrid" with "almost a taste to it" that some employees feel in their throat as their eyes begin to water. Though not all Steptoe employees complain about the smell, some have also described it bringing on such symptoms as headaches and dizziness. 

"It's like being at a backyard barbecue, except you're in your house," this source says. "Different people have different experiences at different times."

The exhaust from Rogue States exits the building's second-floor level into a "canyon" between several nearby buildings, this source says, with the smell getting sucked into air vents near Steptoe's office. The strength of the smell depends on which way the wind is blowing and "other things going on in the atmosphere," according to our Steptoe sniffer.

The Washington Post, bringing its readers up to date on the burger war this past weekend, reported that a "top rainmaker" had threatened to leave the firm unless his secretary's complaints about the incessant smell were resolved. We reached out to one of the firm's litigation heavy hitters, Reid Weingarten, to find out if he had any opinion about the Rogue States smell, but he was out of the office and unavailable for comment.

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