Updated 3:16 p.m.
Steptoe & Johnson is getting what they ordered in their dispute with a local burger joint.
In a hearing yesterday, D.C. Superior Court Judge John Mott granted Steptoe's request for a preliminary injunction and ordered Rogue States, A Burger Company to come up with a way to stop emitting offensive odors within 30 days or risk facing court-ordered penalties. Mott also set Oct. 4 as the trial date in the ongoing burger dispute.
Mott’s order came as a result of a suit filed by Steptoe against the hamburger restaurant, in which Steptoe claimed that fumes from the restaurant are causing health problems for its employees.
On Aug. 10, the parties in the case submitted proposals for how the injunction should be structured to abate what Steptoe claims is a nuisance. Steptoe and its building owner, Boston Properties, both represented by Pillsbury Winthrop Shaw Pittman’s Deborah Baum, wrote in their proposal that Rogue States should be required to re-route its exhaust system to the roof of its 10-story building within 30 days.
Rogue States, represented by Gary Adler, managing partner of Roetzel & Andress’ Washington office, laid out a series of options for Mott to choose from. The first option was not to issue an injunction at all. Adler’s second option is to have whatever injunctive order Mott issues not require that the restaurant be closed pending trial.
Adler’s third option said that because TRT 1300 Connecticut Avenue Owner LLC, which owns the building in which the restaurant operates, allegedly insisted on installing an exhaust “scrubber,” which evidently didn’t work, as opposed to re-routing the exhaust system to the roof, TRT should be on the hook for paying to fix the problem.
TRT, which is represented by Paul Kiernan of Holland & Knight, also offered several proposals to fix the alleged problem, one of which was to order Rogue States to cease operating. The second option Kiernan put forward is to allow TRT to install an advanced oxidization cell, a type of technology designed to abate odors, at its own expense until the trial is included.
Steptoe and Boston Properties took issue with the idea of installing the advanced oxidization cell in Steptoe’s offices. In an Aug. 20 filing, Baum wrote that the technology is “unproven” in the way it would be used in that situation. Baum also raised concerns about the healthfulness of the device since it works by deploying ozone as a means of bonding with offensive odors and making them less bothersome.
Mott’s ruling didn’t really wade into that debate. He declined to outline exactly how the alleged problem should be fixed, instead leaving it up to Rogue States and TRT to come up with a way to address the issue.
Mott also ordered Steptoe to post a $250,000 injunction bond, which would be used to return things to the status quo should Rogue States win at trial.
Update: In a statement, Steptoe's general counsel Thomas Barba said, "From the time we filed this action -- and even before then -- our hope has been that Rogue States and its landlord would simply re-route the restaurant's exhaust to a location on the roof where it is not drawn into our building's air handlers, consistent with what our experts advise is the industry standard practice. We continiue to be disappointed that for whatever reason they opt not to undertake that solution, as we have stressed repeatedly to the court and to the parties, it has never been our goal to force Rogue States to close. But our employees are entitled to a work environment that is free of odor that many find offensive, and we regret that we have had to resort to litigation at all to obtain relief when a quite straightforward solution should have been available."