In re ESMARK INC. AND

UNITED STATES OF AMERICA 
Before the 
SECURITIES AND EXCHANGE COMMISSION 
 
SECURITIES EXCHANGE ACT OF 1934 
Release No. 100957 / September 6, 2024 
 
ADMINISTRATIVE PROCEEDING 
File No. 3-22077 
In the Matter of 
 
ESMARK INC. AND 
JAMES P. BOUCHARD, 
 
Respondents. 
 
 
ORDER INSTITUTING CEASE-AND- 
DESIST PROCEEDINGS PURSUANT TO 
SECTION 21C OF THE SECURITIES 
EXCHANGE ACT OF 1934, MAKING 
FINDINGS, AND IMPOSING A CEASE- 
AND-DESIST ORDER 
 
I. 
 
The Securities and Exchange Commission (“Commission”) deems it appropriate that cease- 
and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities 
Exchange Act of 1934 (“Exchange Act”) against Esmark Inc. (“Esmark”) and James P. Bouchard 
(“Bouchard”) (collectively, “Respondents”). 
 
II. 
 
In anticipation of the institution of these proceedings, Respondents have submitted Offers 
of Settlement (the “Offers”) which the Commission has determined to accept. Solely for the 
purpose of these proceedings and any other proceedings brought by or on behalf of the 
Commission, or to which the Commission is a party, and without admitting or denying the findings 
herein, except as to the Commission’s jurisdiction over them and the subject matter of these 
proceedings, which are admitted, and except as provided herein in Section V, Respondents consent 
to the entry of this Order Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the 
Securities Exchange Act of 1934, Making Findings, and Imposing a Cease-and-Desist Order 
(“Order”), as set forth below. 

2 
 
III. 
 
On the basis of this Order and Respondents’ Offers, the Commission finds
1
 that: 
 
Summary 
 
This matter concerns the announcement of a tender offer by Respondents Esmark and 
Bouchard while not having a reasonable belief that Esmark would have the financial means to 
consummate the publicly announced tender offer. On August 14, 2023, at Bouchard’s direction 
and approval, Esmark announced an offer for all issued and outstanding shares in U.S. Steel 
Corporation (“U.S. Steel”) for $35 per share. The press release in which the announcement was 
made stated that the initial offer period was from August 14, 2023 to November 30, 2023, and 
completion of the offer was expected in Q4 2023. The following day, on August 15, Bouchard 
appeared on CNBC and said that Esmark had no debt and $10 billion available in cash 
committed to the deal. A week after the announcement, Esmark withdrew its offer. 
 
In reality, Esmark and Bouchard did not have the $7.8 billion in cash required to complete 
the purchase of U.S. Steel for $35 per share as it publicly projected. As of August 31, 2023, as 
Bouchard knew, Esmark had on-hand less than 1% of the required $7.8 billion cash to complete 
the tender offer. As such, Esmark and Bouchard violated Section 14(e) of the Exchange Act and 
Rule 14e-8 thereunder when they announced Esmark’s offer to purchase U.S. Steel for cash while 
lacking a reasonable belief that they would have the means to complete the offer. 
 
Respondents 
 
1. James P. Bouchard, age 64, is a United States citizen residing in Clearwater, 
Florida. Bouchard is the founder, Chairman, and former CEO of Esmark. Bouchard retired as 
CEO on November 23, 2023, but remains the Chairman of the Board of Esmark. Bouchard is 
also the sole owner of the Bouchard Group, which is the controlling shareholder of Esmark. 
 
2. Esmark Inc. is a diversified, privately-held family company with a portfolio of 
companies focused on several industries including, among others, steel services and oil and gas 
exploration. Bouchard founded Esmark in 2003, under the name “Esmark II.” In 2007, Esmark 
completed a hostile reverse merger with Wheeling-Pittsburgh Steel Corporation without any 
debt financing. From 2007 to 2008, Esmark’s common shares were registered pursuant to 
Section 12(b) of the Exchange Act and listed on NASDAQ. In August 2008, OAO Severstal 
purchased Esmark for $1.3 billion. In October 2008, Bouchard, through the Bouchard Group, 
repurchased the Esmark name, trademark, and intellectual property from OAO Severstal. 
 
 
 
                                                      
1
  The findings herein are made pursuant to Respondents’ Offers of Settlement and are not 
binding on any other person or entity in this or any other proceeding.   
 

3 
 
Facts 
 
3. On August 14, 2023, Bouchard emailed the director of communications at Esmark 
to prepare a press release for an all-cash offer to purchase U.S. Steel shares at $35 per share, and 
that he wanted it to be released that day. That day, the director of communications at Esmark 
drafted the press release, and Bouchard reviewed and approved the press release. 
 
4. That afternoon, around 3 p.m. EDT, the announcement was released on Business 
Wire. The headline stated: “Esmark Inc. Announces All-Cash Public Offer for U.S. Steel Shares. 
Offering $35 per share.” The body of the press release stated in relevant part: “Esmark Inc. 
announced today a voluntary public cash and exchange offer for all issued and outstanding shares 
in U.S. Steel Corporation (NYSE: X) (‘U.S. Steel’) for $35 USD per share. The initial offer period 
runs from August 14, 2023, to November 30, 2023, and may be extended. Completion of the Offer 
is expected in Q4 2023, subject to regulatory and antitrust clearances.” 
 
5. On August 15, 2023, Bouchard participated in an interview on CNBC regarding 
Esmark’s press release. During the interview, he stated that Esmark has no debt and runs off 
cash. He further stated that Esmark has $10 billion in cash committed to the deal and would 
not put up any of Esmark’s assets as collateral. 
 
6. Statements in the press release and interview were false. Esmark and Bouchard 
did not have a reasonable belief that Esmark had the financial means to complete the tender 
offer. As of August 31, 2023, Esmark had less than 1% of the required $7.8 billion in cash to 
complete the tender offer. 
 
7. On August 23, 2023, Esmark withdrew its offer via issuance of a press release. 
 
8. Between August 14 and 23, 2023, Esmark did not take many of the necessary steps 
to commence the tender offer. For instance, Esmark did not set up a depository trust agreement or 
provide the means by which U.S. Steel’s shareholders could tender their shares. 
 
Violations 
9. As a result of the conduct described above, Respondents Esmark and Bouchard 
violated Section 14(e) of the Exchange Act and Rule 14e-8 thereunder, which prohibit, among 
other things, the public announcement of a plan to make a tender offer if the person does not have 
the reasonable belief that it will have the means to purchase the securities to complete the offer. 
 
IV. 
In view of the foregoing, the Commission deems it appropriate to impose the sanctions 
agreed to in Respondents’ Offers. 
 
Accordingly, it is hereby ORDERED that: 
 

4 
 
A. Pursuant to Section 21C of the Exchange Act, Respondents cease and desist from 
committing or causing any violations and any future violations of Section 14(e) of the Exchange 
Act and Rule 14e-8 thereunder. 
 
B. Respondent Esmark shall, within 14 days of the entry of this Order, pay a civil 
money penalty in the amount of $500,000 to the Securities and Exchange Commission for transfer 
to the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3). If 
timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717. 
 
C. Respondent Bouchard shall, within 14 days of the entry of this Order, pay a civil 
money penalty in the amount of $100,000 to the Securities and Exchange Commission for transfer 
to the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3). If 
timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717. 
 
Payment must be made in one of the following ways: 
 
(1) Respondents may transmit payment electronically to the Commission, 
which will provide detailed ACH transfer/Fedwire instructions upon 
request; 
 
(2) Respondents may make direct payment from a bank account via Pay.gov 
through the SEC website at http://www.sec.gov/about/offices/ofm.htm; or 
 
(3) Respondents may pay by certified check, bank cashier’s check, or United 
States postal money order, made payable to the Securities and Exchange 
Commission and hand-delivered or mailed to: 
 
Enterprise Services Center 
Accounts Receivable Branch 
HQ Bldg., Room 181, AMZ-341 
6500 South MacArthur Boulevard 
Oklahoma City, OK 73169 
Payments by check or money order must be accompanied by a cover letter identifying 
Esmark Inc. and James P. Bouchard as Respondents in these proceedings, and the file number of 
these proceedings; a copy of the cover letter and check or money order must be sent to Thomas P. 
Smith, Jr., Associate Regional Director, New York Regional Office, Securities and Exchange 
Commission, 100 Pearl St., Suite 20-100, New York, NY 10004. 
 
D. Amounts ordered to be paid as civil money penalties pursuant to this Order shall be 
treated as penalties paid to the government for all purposes, including all tax purposes. To 
preserve the deterrent effect of the civil penalty, Respondents agree that in any Related Investor 
Action, they shall not argue that they are entitled to, nor shall they benefit by, offset or reduction of 
any award of compensatory damages by the amount of any part of Respondents’ payment of a civil 
penalty in this action (“Penalty Offset”). If the court in any Related Investor Action grants such a 

5 
 
Penalty Offset, Respondents agree that they shall, within 30 days after entry of a final order 
granting the Penalty Offset, notify the Commission’s counsel in this action and pay the amount of 
the Penalty Offset to the Securities and Exchange Commission. Such a payment shall not be 
deemed an additional civil penalty and shall not be deemed to change the amount of the civil 
penalty imposed in this proceeding. For purposes of this paragraph, a “Related Investor Action” 
means a private damages action brought against Respondents by or on behalf of one or more 
investors based on substantially the same facts as alleged in the Order instituted by the 
Commission in this proceeding. 
V. 
It is further Ordered that, solely for purposes of exceptions to discharge set forth in Section 
523 of the Bankruptcy Code, 11 U.S.C. § 523, the findings in this Order are true and admitted by 
Respondent Bouchard, and further, any debt for disgorgement, prejudgment interest, civil penalty 
or other amounts due by Respondent Bouchard under this Order or any other judgment, order, 
consent order, decree or settlement agreement entered in connection with this proceeding, is a debt 
for the violation by Respondent Bouchard of the federal securities laws or any regulation or order 
issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. 
§ 523(a)(19). 
 
By the Commission. 
 
 
 
Vanessa A. Countryman 
Secretary 

UNITED STATES OF AMERICA 

Before the 

SECURITIES AND EXCHANGE COMMISSION 

 

SECURITIES EXCHANGE ACT OF 1934 

Release No. 100957 / September 6, 2024 

 

ADMINISTRATIVE PROCEEDING 

File No. 3-22077 

In the Matter of 

 

ESMARK INC. AND 

JAMES P. BOUCHARD, 

 

Respondents. 
 

 

ORDER INSTITUTING CEASE-AND- 

DESIST PROCEEDINGS PURSUANT TO 

SECTION 21C OF THE SECURITIES 

EXCHANGE ACT OF 1934, MAKING 

FINDINGS, AND IMPOSING A CEASE- 

AND-DESIST ORDER 

 

I. 

 

The Securities and Exchange Commission (“Commission”) deems it appropriate that cease- 

and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities 

Exchange Act of 1934 (“Exchange Act”) against Esmark Inc. (“Esmark”) and James P. Bouchard 

(“Bouchard”) (collectively, “Respondents”). 

 

II. 

 

In anticipation of the institution of these proceedings, Respondents have submitted Offers 

of Settlement (the “Offers”) which the Commission has determined to accept. Solely for the 

purpose of these proceedings and any other proceedings brought by or on behalf of the 

Commission, or to which the Commission is a party, and without admitting or denying the findings 

herein, except as to the Commission’s jurisdiction over them and the subject matter of these 

proceedings, which are admitted, and except as provided herein in Section V, Respondents consent 

to the entry of this Order Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the 

Securities Exchange Act of 1934, Making Findings, and Imposing a Cease-and-Desist Order 

(“Order”), as set forth below. 



2  

III. 

 

On the basis of this Order and Respondents’ Offers, the Commission finds1 that: 

 

Summary 

 

This matter concerns the announcement of a tender offer by Respondents Esmark and 

Bouchard while not having a reasonable belief that Esmark would have the financial means to 

consummate the publicly announced tender offer. On August 14, 2023, at Bouchard’s direction 

and approval, Esmark announced an offer for all issued and outstanding shares in U.S. Steel 

Corporation (“U.S. Steel”) for $35 per share. The press release in which the announcement was 

made stated that the initial offer period was from August 14, 2023 to November 30, 2023, and 

completion of the offer was expected in Q4 2023. The following day, on August 15, Bouchard 

appeared on CNBC and said that Esmark had no debt and $10 billion available in cash 

committed to the deal. A week after the announcement, Esmark withdrew its offer. 

 

In reality, Esmark and Bouchard did not have the $7.8 billion in cash required to complete 

the purchase of U.S. Steel for $35 per share as it publicly projected. As of August 31, 2023, as 

Bouchard knew, Esmark had on-hand less than 1% of the required $7.8 billion cash to complete 

the tender offer. As such, Esmark and Bouchard violated Section 14(e) of the Exchange Act and 

Rule 14e-8 thereunder when they announced Esmark’s offer to purchase U.S. Steel for cash while 

lacking a reasonable belief that they would have the means to complete the offer. 

 

Respondents 

 

1. James P. Bouchard, age 64, is a United States citizen residing in Clearwater, 

Florida. Bouchard is the founder, Chairman, and former CEO of Esmark. Bouchard retired as 

CEO on November 23, 2023, but remains the Chairman of the Board of Esmark. Bouchard is 

also the sole owner of the Bouchard Group, which is the controlling shareholder of Esmark. 

 

2. Esmark Inc. is a diversified, privately-held family company with a portfolio of 

companies focused on several industries including, among others, steel services and oil and gas 

exploration. Bouchard founded Esmark in 2003, under the name “Esmark II.” In 2007, Esmark 

completed a hostile reverse merger with Wheeling-Pittsburgh Steel Corporation without any 

debt financing. From 2007 to 2008, Esmark’s common shares were registered pursuant to 

Section 12(b) of the Exchange Act and listed on NASDAQ. In August 2008, OAO Severstal 

purchased Esmark for $1.3 billion. In October 2008, Bouchard, through the Bouchard Group, 

repurchased the Esmark name, trademark, and intellectual property from OAO Severstal. 

 

 

 

                                                      
1  The findings herein are made pursuant to Respondents’ Offers of Settlement and are not 

binding on any other person or entity in this or any other proceeding.   

 



3  

Facts 

 

3. On August 14, 2023, Bouchard emailed the director of communications at Esmark 

to prepare a press release for an all-cash offer to purchase U.S. Steel shares at $35 per share, and 

that he wanted it to be released that day. That day, the director of communications at Esmark 

drafted the press release, and Bouchard reviewed and approved the press release. 

 

4. That afternoon, around 3 p.m. EDT, the announcement was released on Business 

Wire. The headline stated: “Esmark Inc. Announces All-Cash Public Offer for U.S. Steel Shares. 

Offering $35 per share.” The body of the press release stated in relevant part: “Esmark Inc. 

announced today a voluntary public cash and exchange offer for all issued and outstanding shares 

in U.S. Steel Corporation (NYSE: X) (‘U.S. Steel’) for $35 USD per share. The initial offer period 

runs from August 14, 2023, to November 30, 2023, and may be extended. Completion of the Offer 

is expected in Q4 2023, subject to regulatory and antitrust clearances.” 

 

5. On August 15, 2023, Bouchard participated in an interview on CNBC regarding 

Esmark’s press release. During the interview, he stated that Esmark has no debt and runs off 

cash. He further stated that Esmark has $10 billion in cash committed to the deal and would 

not put up any of Esmark’s assets as collateral. 

 

6. Statements in the press release and interview were false. Esmark and Bouchard 

did not have a reasonable belief that Esmark had the financial means to complete the tender 

offer. As of August 31, 2023, Esmark had less than 1% of the required $7.8 billion in cash to 

complete the tender offer. 

 

7. On August 23, 2023, Esmark withdrew its offer via issuance of a press release. 

 

8. Between August 14 and 23, 2023, Esmark did not take many of the necessary steps 

to commence the tender offer. For instance, Esmark did not set up a depository trust agreement or 

provide the means by which U.S. Steel’s shareholders could tender their shares. 

 

Violations 

9. As a result of the conduct described above, Respondents Esmark and Bouchard 

violated Section 14(e) of the Exchange Act and Rule 14e-8 thereunder, which prohibit, among 

other things, the public announcement of a plan to make a tender offer if the person does not have 

the reasonable belief that it will have the means to purchase the securities to complete the offer. 

 

IV. 

In view of the foregoing, the Commission deems it appropriate to impose the sanctions 

agreed to in Respondents’ Offers. 

 

Accordingly, it is hereby ORDERED that: 

 



4  

A. Pursuant to Section 21C of the Exchange Act, Respondents cease and desist from 

committing or causing any violations and any future violations of Section 14(e) of the Exchange 

Act and Rule 14e-8 thereunder. 
 

B. Respondent Esmark shall, within 14 days of the entry of this Order, pay a civil 

money penalty in the amount of $500,000 to the Securities and Exchange Commission for transfer 

to the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3). If 

timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717. 

 

C. Respondent Bouchard shall, within 14 days of the entry of this Order, pay a civil 

money penalty in the amount of $100,000 to the Securities and Exchange Commission for transfer 

to the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3). If 

timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717. 

 

Payment must be made in one of the following ways: 

 

(1) Respondents may transmit payment electronically to the Commission, 

which will provide detailed ACH transfer/Fedwire instructions upon 

request; 

 

(2) Respondents may make direct payment from a bank account via Pay.gov 

through the SEC website at http://www.sec.gov/about/offices/ofm.htm; or 

 

(3) Respondents may pay by certified check, bank cashier’s check, or United 

States postal money order, made payable to the Securities and Exchange 

Commission and hand-delivered or mailed to: 

 

Enterprise Services Center 

Accounts Receivable Branch 

HQ Bldg., Room 181, AMZ-341 

6500 South MacArthur Boulevard 

Oklahoma City, OK 73169 

Payments by check or money order must be accompanied by a cover letter identifying 

Esmark Inc. and James P. Bouchard as Respondents in these proceedings, and the file number of 

these proceedings; a copy of the cover letter and check or money order must be sent to Thomas P. 

Smith, Jr., Associate Regional Director, New York Regional Office, Securities and Exchange 

Commission, 100 Pearl St., Suite 20-100, New York, NY 10004. 

 

D. Amounts ordered to be paid as civil money penalties pursuant to this Order shall be 

treated as penalties paid to the government for all purposes, including all tax purposes. To 

preserve the deterrent effect of the civil penalty, Respondents agree that in any Related Investor 

Action, they shall not argue that they are entitled to, nor shall they benefit by, offset or reduction of 

any award of compensatory damages by the amount of any part of Respondents’ payment of a civil 

penalty in this action (“Penalty Offset”). If the court in any Related Investor Action grants such a 

http://www.sec.gov/about/offices/ofm.htm


5  

Penalty Offset, Respondents agree that they shall, within 30 days after entry of a final order 

granting the Penalty Offset, notify the Commission’s counsel in this action and pay the amount of 

the Penalty Offset to the Securities and Exchange Commission. Such a payment shall not be 

deemed an additional civil penalty and shall not be deemed to change the amount of the civil 

penalty imposed in this proceeding. For purposes of this paragraph, a “Related Investor Action” 

means a private damages action brought against Respondents by or on behalf of one or more 

investors based on substantially the same facts as alleged in the Order instituted by the 

Commission in this proceeding. 

V. 

It is further Ordered that, solely for purposes of exceptions to discharge set forth in Section 

523 of the Bankruptcy Code, 11 U.S.C. § 523, the findings in this Order are true and admitted by 

Respondent Bouchard, and further, any debt for disgorgement, prejudgment interest, civil penalty 

or other amounts due by Respondent Bouchard under this Order or any other judgment, order, 

consent order, decree or settlement agreement entered in connection with this proceeding, is a debt 

for the violation by Respondent Bouchard of the federal securities laws or any regulation or order 

issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. 

§ 523(a)(19). 

 

By the Commission. 

 

 

 

Vanessa A. Countryman 

Secretary 


	UNITED STATES OF AMERICA
	SECURITIES AND EXCHANGE COMMISSION
	ADMINISTRATIVE PROCEEDING
	I.
	II.
	III.
	IV.
	V.