See , e.g. , UVAS Farming Corp. v. Laviana Investments, N.V. (In re UVAS Farming Corp.) , 89 B.R. 889, 891–94 (Bankr. D.N.M. 1988) ; see alsoRoost v. Timber Components, Inc. (In re Tyee Timbers, Inc.) , 139 B.R. 520, 524–25 (Bankr. D. Ore. 1992) (citing UVAS Farming and holding that "[t]his court agrees that the concept of voting power is the appropriate measure to determine whether or not [debtor's president] was an affiliate of the debtor "); see alsoIn re Piece Goods Shops Co. , 188 B.R. at 796–97 (noting that Congress did not redefine "voting securities" for bankruptcy purposes and that the legislative history of § 101(2) indicates that "affiliate" is "intended to cover situations where there is an opportunity to control" a debtor). If an alleged affiliate does not have an "opportunity to control" with respect to at least 20% of the stock of the debtor, then that entity is not an affiliate under § 101(2).
In re Hollar, 100 B.R. 892 (Bankr. N.D. Ohio 1989). The bankruptcy court in this case may have been persuaded by the case relied on by the trustee, In re Tyee Timbers, Inc., 139 B.R. 520 (Bankr. D. Or. 1992). Tyee Timbers is distinguishable from this case, because in Tyee Timbers, the individual who had insider connections with both the debtor and the defendant was an "affiliate" of the debtor. As we noted above, an affiliate is specifically listed in § 101(31) as an insider.
H.R. Rep. No. 595, 95th Cong., 1st Sess. 308 (1977), U.S. Code Cong. Admin. News 1978, pp. 5787, 6265. Courts have effectuated this expressed legislative intent in holding, consistent with the SEC definition of "voting securities," that the extent of a security holder's voting power is the appropriate measure of determining whether one is an "affiliate" of a debtor for "insider" purposes. In re Tyee Timbers, Inc., 139 B.R. 520, 525 (Bankr.D.Or. 1992) (any preferred stock voting power arising from the state law grant of voting rights on extraordinary events such as business combinations, disposition of the debtor's property and corporate charter amendments, did not give the preferred shareholders the "opportunity to control" the debtor, and consequently, the preferred stock did not constitute "voting securities" for determining insider status); In re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M. 1988) (determination of affiliate status was based on percentage of voting control not percentage of stock ownership). In re Locke Mill Partners, 178 B.R. 697 (Bankr.M.D.N.C. 1995), a case recently decided in this district, is consistent with the foregoing authorities.