Earlier this week, I wrote about Jim McRitchie’s “appeal” of the SEC staff’s decision to concur with the Whole Foods’ exclusion of his shareholder proxy access proposal based on the inclusion of a company proposal. Yesterday, Whole Foods filed its preliminary proxy statement.  No one should be surprised to see that Whole Foods included its proposal and excluded Mr. McRitchie’s.  Whole Foods, however, discloses no uncertainty about whether it is possible under Texas law to discriminate amongst shareholders pursuant to a Bylaw provision.  See In Texas Can Some Shares Be More Equal Than Others?