WIIMERHALE Lillian Brown +1 202 663 6743 (t) January 25, 2021 +1 202 663 6363 (f) [email protected] Via E-mail to [email protected] U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel 100 F Street, NE Washington, DC 20549 Re: Discovery, Inc. Exclusion of Shareholder Proposal by Kenneth Steiner Ladies and Gentlemen: We are writing on behalf of our client, Discovery, Inc. (the “Company”), to inform you of the Company’s intention to exclude from its proxy statement and proxy to be filed and distributed in connection with its 2021 annual meeting of shareholders (the “Proxy Materials”) the enclosed shareholder proposal and supporting statement (collectively, the “Proposal”) submitted by Kenneth Steiner (together with his designated representative, John Chevedden, the “Proponent”). The Company believes it may properly exclude the Proposal from its Proxy Materials for the reasons discussed below. The Company respectfully requests that the staff of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission (the “Commission”) advise the Company that it will not recommend any enforcement action to the Commission if the Company excludes the Proposal from its Proxy Materials pursuant to Rule 14a-8(b) and Rule 14a-8(f) of the Securities Exchange Act of 1934 (the “Exchange Act”). Pursuant to Exchange Act Rule 14a-8(j) and Staff Legal Bulletin No. 14D (November 7, 2008) (“SLB 14D”), the Company is submitting electronically to the Commission this letter, and the Proposal and related correspondence (attached as Exhibit A to this letter), and is concurrently sending a copy to the Proponent, no later than eighty calendar days before the Company intends to file its definitive Proxy Materials with the Commission. I. Basis for Exclusion As discussed more fully below, the Company believes that the Proposal may be properly Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue NW, Washington, DC 20006 Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Palo Alto San Francisco Washington ***FISMA & OMB Memorandum M-07-16 WILMERHALE January 25, 2021 Page 2 excluded from the Proxy Materials pursuant to Rule 14a-8(b) and Rule 14a-8(f)(1) because the Proponent has failed to establish that he had continuously held at least $2,000 in market value, or 1%, of the Company’s securities entitled to be voted on the Proposal at the Company’s 2021 annual meeting of shareholders (the “2021 Annual Meeting”) for at least one year by the date on which he submitted the Proposal. II. Analysis The Proposal May Be Excluded Under Rule 14a-8(b) and Rule 14a-8(f) Because the Proponent Has Failed To Establish That He Continuously Held At Least $2,000 In Market Value, or 1%, Of the Company’s Securities Entitled To Be Voted On the Proposal At the Company’s 2021 Annual Meeting. Rule 14a-8(b)(1) of the Exchange Act provides that, to be eligible to submit a proposal for a company’s annual meeting, a proponent must (i) have continuously held at least $2,000 in market value, or 1%, of the company’s securities entitled to be voted on the proposal at the meeting for at least one year by the date such shareholder submits the proposal and (ii) continue to hold those securities through the date of the meeting. Under Rule 14a-8(b)(2), if a proponent is not a registered shareholder of a company and has not made a filing with the SEC detailing the proponent’s beneficial ownership of shares in the company (as described in Rule 14a-8(b)(2)(ii)), such proponent has the burden to prove that he meets the beneficial ownership requirements of Rule 14a-8(b)(1) by submitting to the Company (i) a written statement from the “record” holder of the securities verifying that, at the time the proponent submitted the proposal, the proponent continuously held the requisite amount of such securities for at least one year and (ii) the proponent’s own written statement that he intends to continue to hold such securities through the date of the meeting. If the proponent fails to provide such proof of ownership, the company may exclude the proposal, but only if the company notifies the proponent in writing of such deficiency within 14 calendar days of receiving the proposal and the proponent fails to adequately correct it. A proponent’s response to such notice of deficiency must be postmarked or transmitted electronically to the Company no later than 14 days from the date the proponent receives the notice of deficiency. The Company received the Proposal on December 28, 2020. In the letter accompanying the Proposal, the Proponent represented that he “will meet Rule 14a-8 requirements including the continuous ownership of the required stock value until after the date of the respective shareholder meeting.” The Proponent did not, however, provide written proof of his holdings from the record holder, and the Proponent does not appear on the records of the Company as a shareholder. Accordingly, because the Company was unable to verify the Proponent’s eligibility to submit the Proposal, and in compliance with the timing set forth in Rule 14a-8, the Company sent a notice WILMER.HALE January 25, 2021 Page 3 of deficiency, which is attached as Exhibit B to this letter (the “Notice of Deficiency”), to the Proponent on January 4, 2021, requesting that the Proponent provide the necessary proof required by Rule 14a-8(b)(2) within 14 calendar days of receiving the Company’s request. The Notice of Deficiency was sent by e-mail according to the instructions provided in the Proponent’s letter accompanying the Proposal: “Please direct all future communications regarding my Rule 14a-8 proposal to John Chevedden *** to facilitate prompt and verifiable communication.” On January 7, 2021, three days after the Notice of Deficiency was delivered to Mr. Chevedden by e-mail, the Proponent sent an e-mail attaching proof of stock ownership to the Company (the “TD Ameritrade Letter,” a copy of which is attached as Exhibit C to this letter). The TD Ameritrade Letter states that the Proponent has continuously held no less than 500 shares of “Discovery, Inc Cl C (DISCK)” stock of the Company for at least 13 months from the date of the TD Ameritrade Letter. The Company has three classes of common stock outstanding: (i) Series A Common Stock, which is listed on the Nasdaq Global Select Market under the ticker symbol “DISCA,” (ii) Series B Common Stock, which is listed on the Nasdaq Global Select Market under the ticker symbol “DISCB,” and (iii) Series C Common Stock, which is listed on the Nasdaq Global Select Market under the ticker symbol “DISCK.” The TD Ameritrade Letter lists the Proponent’s ownership of shares of the Company as shares of “Discovery, Inc Cl C (DISCK),” which identifies the Company’s Series C Common Stock. To date, the TD Ameritrade Letter is the only response to the Notice of Deficiency that the Company has received from the Proponent evidencing the Proponent’s ownership of the Company’s securities. Rule l4a-8(b)(1) provides, among other things, that in order to be eligible to submit a proposal, a shareholder must hold “securities entitled to be voted on the proposal at the meeting” (emphasis added). As set forth in the Company’s Restated Certificate of Incorporation, as amended to date (the “Restated Certificate,” a copy of which is attached as Exhibit D to this letter), “[h]olders of [the Company’s] Series C Common Stock shall not be entitled to any voting powers, except as (and then only to the extent) otherwise required by the laws of the State of Delaware.” The Proposal is not a matter on which Delaware law would require a shareholder vote by the holders of Series C Common Stock, and therefore, the Restated Certificate does not permit holders of Series C Common Stock to vote on the Proposal. Accordingly, the TD Ameritrade Letter fails to provide evidence that the Proponent held the requisite securities entitled to be voted on the Proposal at the 2021 Annual Meeting. The Staff has consistently concurred that a company may exclude from its proxy materials shareholder proposals submitted by proponents who do not hold a class of stock entitled to be WILMERHALE January 25, 2021 Page 4 voted on the proposal. See Scripps Networks Interactive, Inc. (January 14, 2016) (concurring in exclusion of a proposal under Rule 14a-8(b) and Rule 14a-8(f) because the proponent held a class of stock that would not be entitled to be voted on the proposal) and The New York Times Company (December 31, 2008) (concurring in exclusion of a proposal under Rule 14a-8(b) because the proponent held a class of the company’s stock not entitled to be voted on the proposal). See also Comcast Corporation (March 26, 2012) (concurring in exclusion of a proposal under Rule 14a-8(b) and Rule 14a-8(f) because the proponent failed to supply documentary support sufficiently evidencing that it held the minimum amount of securities entitled to be voted on the proposal for the requisite period). Similarly, the TD Ameritrade Letter indicates that the Proponent holds a class of the Company’s stock that would not be entitled to be voted on the Proposal. The Proponent therefore failed to establish that he held the requisite securities entitled to be voted on the Proposal at the 2021 Annual Meeting. Under Rule 14a-8(f), a company may exclude from its proxy materials a proposal submitted by a proponent who fails to satisfy the eligibility requirements set forth in Rule 14a-8(b).