CHOICES are narrowing on who should carry the can for keeping the market imperfectly informed about David Jones' ''Caution: evaporates in sunlight'' non-takeover offer a week ago.

There seems little doubt that DJs made a vice out of a potential virtue by doing what too many public companies do - treating voluntary disclosure of information like having a tooth pulled without anaesthetic. The ''abundance of caution'' approach thrust on them by their lawyers defeats the spirit of disclosure, and allows weasel words to prevail.

Insider tried yesterday to elicit a response from the ASX on suggestions that the retailer had put both the exchange and the corporate watchdog in the picture before it told the market anything last Friday.

The ASX dead-batted the issue, on the grounds that the Australian Securities and Investments Commission is investigating, making it inappropriate to comment, but did not reject the suggestion that DJs' advisers had sought a ruling on whether to disclose.

Somehow, even the time that ASX sent a ''please explain'' letter to DJs on Friday could impede the ASIC investigation, although Insider is unclear why.

Under the (in Insider's opinion, flawed) continuous disclosure regime, responsibility for deciding what and when to tell the market rests with the listed company. Responsibility for nudging companies in the ribs over disclosure rests with the ASX, but enforcement is ASIC's turf - see Leighton ''we admit nothing'' Holdings' agreement to pay infringement notices a few months back.

For the sake of the argument, let us assume that DJs did consult the regulators first, and was told that under the disclosure rules, it was probably time to tell the market something. Technically, the regulators can only interpret the rules, and not give advice on the level of disclosure that needs to be made. That is the province of the company and its legal advisers.

DJs' first, terse statement last Friday had a few red flags in it for sophisticated investors - ''no usual public information available'' - but did not really help the average punter. Who knows what the final phrase ''treat any related market comment cautiously'' was supposed to mean?

After lunch, when EB Private Equity had been revealed (quite possibly due to EB's use of a business blog of uncertain provenance), DJs dribbled a little more information into the market.

It was after that statement that the ASX asked DJs to justify its disclosure actions.

On Sunday, EB Private Equity's director, John Edgar, told selected media something DJs had still not felt that its investors needed to know - that his gambit started way back on May 22.

So DJs' advisers, lawyers Freehills and investment bank Gresham Partners, failed in a month to establish Edgar's bona fides. You would really have to wonder about their global networking abilities.

More extraordinary is that it took DJs more than three days to produce a response to the ASX's questions - and it stilled missed the 6pm deadline.

That seems awfully contemptuous of its shareholders. The document properties on DJs' release show that the author was Freehills, and have a time stamp of post-6pm - suggesting that the delay was not an ASX issue.

DJs, whether of its own volition or on bad advice, made a series of poor calls. It could easily have revealed in its first statement a blow-by-blow description of the saga and explained that despite the company's best efforts … DJs was unable to say whether the offer was credible.

The ASX questioning of DJs makes Insider wonder if the market controllers are thinking along the same lines and their reticence is not because ASIC is investigating the offer and share trading in DJs but also because ASX has referred DJs' performance on disclosure for further scrutiny.

 

Done and dusted

CREDIT where credit is due, and Insider must compliment the management of PaperlinX for the most extraordinarily speedy asset sale in living memory.

PaperlinX only told investors on June 26 that it had signed a deal to sell its profitable US business, including that it planned to settle the sale by June 30.

Anyone in business knows that between signing a deal and finalising can take months. Not at PaperlinX. It told the market on Wednesday this week that the deal was done and dusted.

That is only eight days from go to whoa, which is a superlative effort - particularly for a company that has heaved so many of its staff overboard in a bid to stay afloat.

After all, if the process had started any earlier, PaperlinX would have been compelled to tell the market under continuous disclosure obligations.

Clearly the engineer of the deal was not Chris Creighton, head of PaperlinX's US business and 30-plus-years' employee, because his services were dispensed with even before the deal was closed.

imcilwraith@fairfaxmedia.com.au