PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                     No. 17-1663
                   _______________

  AMERICAN ORTHOPEDIC & SPORTS MEDICINE,
           on assignment of Joshua S.,
                           Appellant
                      v.

   INDEPENDENCE BLUE CROSS BLUE SHIELD;
     HORIZON BLUE CROSS BLUE SHIELD OF
                NEW JERSEY
               _______________

     On Appeal from the United States District Court
             for the District of New Jersey
              (D.N.J. No. 2-16-cv-08988)
      Honorable Jose L. Linares, U.S. District Judge
                   _______________

              Argued: November 15, 2017

Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges

             (Opinion Filed: May 16, 2018)
Samuel S. Saltman          [Argued]
Callagy Law
650 From Road
Suite 565
Paramus, NJ 07652
       Counsel for Appellant


Susan M. Danielski         [Argued]
Gerald J. Dugan
Dugan Brinkmann Maginnis & Pace
1880 John F. Kennedy Boulevard
Suite 1400
Philadelphia, PA 19103
       Counsel for Appellee Independence Blue Cross
       Blue Shield


Michael E. Holzapfel       [Argued]
Becker LLC
354 Eisenhower Parkway
Plaza II, Suite 1500
Livingston, NJ 07039
       Counsel for Appellee Horizon Blue Cross
       Blue Shield of New Jersey




                            2
                     _______________

                OPINION OF THE COURT
                    _______________

KRAUSE, Circuit Judge.

       With the evolution of managed healthcare and the
advent of provider networks and other cost-control
mechanisms, many insurers in recent years have incorporated
into their health insurance plans clauses that purport to bar
insureds from assigning their claims to any third party—even
the healthcare provider that rendered the service. This appeal
presents the question whether such “anti-assignment clauses”
are enforceable, or whether, as argued by the healthcare
provider in this case whose claim was dismissed for lack of
standing, they are antithetical to the Employee Retirement
Income Security Act (“ERISA”) and to public policy. For the
reasons that follow, we conclude that anti-assignment clauses
in ERISA-governed health insurance plans are enforceable,
and we will therefore affirm the judgment of the District
Court.

I.    Factual and Procedural History

       In October 2015, Appellant American Orthopedic and
Sports Medicine performed shoulder surgery on “Joshua,” a
patient who was covered by a health insurance plan issued by
Appellees (the “Insurers”).1

      1
         The Insurers are Independence Blue Cross Blue
Shield and Horizon Blue Cross Blue Shield of New Jersey,
both of which are licensees of the Blue Cross Blue Shield




                              3
       After the surgery, Appellant charged Joshua for the
procedure. Because Appellant did not participate in the
Insurers’ network, it was not limited to the fee schedule
prescribed by the Insurers. Instead, it charged Joshua a total
of $58,400 and submitted a claim in that amount to the
Insurers on Joshua’s behalf. The claim form identified the
various medical services rendered to Joshua and indicated
that he had “authorize[d] payment of medical benefits” to
Appellant. J.A. 38. As Appellant’s charges far exceeded the
plan’s allowed reimbursement, the Insurers responded by
processing Joshua’s claim according to its out-of-network cap
of $2,633, applying his deductible of $2,000 and his 50%
coinsurance of $316, issuing him a small reimbursement
check for the remaining $316, and informing him that he
would still owe Appellant the remaining $58,083.

        Dissatisfied, Appellant appealed its claim through the
Insurers’ internal administrative process. At the same time, it
arranged for Joshua to sign a document entitled “Assignment
of Benefits & Ltd. Power of Attorney,” which reflected that
Joshua was assigning to Appellant his right to pursue claims
under his health insurance plan for the surgery and, in the
alternative, that he granted to Appellant a limited power of
attorney to recover the payment on his behalf through an
arbitration or lawsuit. J.A. 36. After the Insurers apparently
denied the appeal, Appellant sued them in New Jersey state
court for violations of ERISA and its implementing
regulations, and for breach of contract. At that point, the


Association. Joshua’s plan was issued by an Independence
affiliate, but Appellant initially submitted its reimbursement
claim to Independence via Horizon.




                              4
Insurers removed the suit to federal court and moved to
dismiss, pointing out that Joshua’s insurance plan included an
anti-assignment clause that stated, “[t]he right of a Member to
receive benefit payments under this Program is personal to
the Member and is not assignable in whole or in part to any
person, Hospital, or other entity,” Independence Response to
Court Letter *90 (filed Nov. 10, 2017) (emphasis added),2
and arguing that Appellant therefore lacked standing to sue.
The District Court agreed and dismissed Appellant’s
complaint, and this appeal followed.

II.   Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over a District Court’s decision to
dismiss for lack of standing. Leuthner v. Blue Cross & Blue
Shield of Ne. Pa., 

, 124 (3d Cir. 2006). To the
extent that the Insurers “contest[] the sufficiency of the
      2
          In full, the anti-assignment clause read:

      Assignment of Benefit to Providers
      The right of a Member to receive benefit
      payments under this Program is personal to the
      Member and is not assignable in whole or in
      part to any person, Hospital, or other entity nor
      may benefits of this Program be transferred,
      either before or after Covered Services are
      rendered. However, a Member can assign
      benefit payments to the custodial parent of a
      Dependent covered under this Program, as
      required by law.




                                 5
pleadings,” we “only consider the allegations of the complaint
and documents referenced therein” and we do so “in the light
most favorable to the plaintiff.” In re Schering Plough Corp.
Intron/Temodar Consumer Class Action, 

, 243
(3d Cir. 2012) (quoting Gould Elecs. Inc. v. United States,

, 176 (3d Cir. 2000)).

III.   Discussion

        Appellant contends it has standing to sue here, first,
because anti-assignment clauses in ERISA-governed health
insurance contracts are unenforceable against healthcare
providers and, second, because even if those clauses are
enforceable, the Insurers waived their right to enforce it in
this case. If we conclude the anti-assignment clause here is
enforceable against healthcare providers, Appellant raises a
third argument in the alternative, i.e., that we should remand
to allow it an opportunity to correct the deficiencies in
Joshua’s Power of Attorney and pursue Joshua’s claims on
his behalf in an agency capacity. We address these arguments
in turn.

       A.    Enforceability of Anti-Assignment Clauses

       The parties stake out opposing views on the
enforceability of anti-assignment clauses, grounding their
positions in ERISA’s text, congressional policy, and
persuasive authority from other Courts of Appeals. For the
reasons explained below, we conclude that none justify a
departure from the general rule that courts will enforce the
terms of an agreement that was freely negotiated between
contracting parties.




                              6
               i.     ERISA’s Text

       ERISA is a “comprehensive legislative scheme”
designed to “protect . . . the interests of participants in
employee benefit plans and their beneficiaries,” Aetna Health
Inc. v. Davila, 

, 208 (2004) (internal quotation
marks omitted), and to do so provides for a variety of
standards and regulations for both “pension plans” and
“welfare plans,” 29 U.S.C. § 1002(1), (2); see also N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 

, 650-51 (1995). The latter category
includes health insurance plans, 29 U.S.C. § 1002(1), and
ERISA provides employees covered by such plans with the
right to sue to “recover benefits due . . . under the terms of
[the] plan,” 

That right, however, is
limited to the “participant” or “beneficiary” under the plan,

with those terms limited respectively to
employees, current or former, eligible to receive benefits
under a covered plan, 

and to persons designated
by a participant or the terms of the plan to receive some
benefit from the plan, 

Although a healthcare


      3
          In full, ERISA defines a “participant” as:

      [A]ny employee or former employee of an
      employer, or any member or former member of
      an employee organization, who is or may
      become eligible to receive a benefit of any type
      from an employee benefit plan which covers
      employees of such employer or members of
      such organization, or whose beneficiaries may
      be eligible to receive any such benefit.




                                7
provider does not fall into either category, see Pascack Valley
Hosp. v. Local 464A UFCW Welfare Reimbursement Plan,

, 400 (3d Cir. 2004), we held in North Jersey
Brain & Spine Center v. Aetna, Inc., 

(3d Cir.
2015) (hereinafter “NJBSC”), that a valid assignment of
benefits by a plan participant or beneficiary transfers to such
a provider both the insured’s right to payment under a plan
and his right to sue for that payment, 

       Appellant argues that because we interpreted ERISA in
NJBSC to allow for the assignment of benefits, we should
now hold that such assignments also may not be disallowed.
But in NJBSC we merely held—in the absence of an anti-
assignment clause—that “when a patient assigns payment of
insurance benefits to a healthcare provider, [the] provider
gains standing to sue for that payment.” 

no
occasion to address the effect or enforceability of an anti-
assignment clause, and thus, despite Appellant’s heavy
reliance on that case, it has little bearing here.

       The Insurers, on the other hand, posit that if Congress
had intended to prohibit anti-assignment clauses in ERISA-
governed health insurance plans, it would have done so
explicitly, just as it did in the pension plan context.4 And,

29 U.S.C. § 1002(7). And ERISA defines a “beneficiary” as:
“[A] person designated by a participant, or by the terms of an
employee benefit plan, who is or may become entitled to a
benefit thereunder.” 

      4
         ERISA states that “[e]ach pension plan shall provide
that benefits provided under the plan may not be assigned or
alienated.” 29 U.S.C. § 1056(d)(1).




                              8
notably, as anti-assignment clauses have become an
increasingly prominent feature of health insurance contracts
in more recent years, Congress also has had ample
opportunity to mandate assignability if indeed that were its
intent. Yet despite repeated amendments and a largescale
overhaul of the healthcare system via the Patient Protection
and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119
(2010), it has not done so.

       In addition, the Insurers highlight the Supreme Court’s
observation in Mackey v. Lanier Collection Agency &
Service, Inc., 

(1988), that “[Congress] had
before it a provision to bar the alienation . . . of ERISA plan
benefits, and chose to impose that limitation only with respect
to ERISA pension benefit plans, and not ERISA welfare
benefit plans. In a comprehensive regulatory scheme like
ERISA, such omissions are significant ones.” 

Some Courts of Appeals have concluded, based in part on that
language from Mackey, that Congress’ silence on
assignability of welfare benefits means anti-assignment
clauses in the health insurance context must be enforceable.
See, e.g., Davidowitz v. Delta Dental Plan of Cal., Inc., 

, 1480-81 (9th Cir. 1991) (“Congress carefully
considered assignment of both pension and welfare plan
benefits, and consciously decided to prohibit pension plan
assignments but remain silent on welfare benefits . . . .
Congress intended not to mandate assignability.”); Ark. Blue
Cross & Blue Shield v. St. Mary’s Hosp., Inc., 

,
1349 (8th Cir. 1991) (“If Congress intended that a mandatory
rule govern the assignment of welfare benefits, it could have
easily provided for such a rule, as it did in the case of pension
benefits.”).




                               9
        We find Mackey less instructive than our Sister
Circuits. The absence of statutory language prohibiting
assignment in the welfare context may indicate that Congress
intended to preserve the rights of individual plan beneficiaries
to assign their benefits. But that silence does not necessarily
mean Congress intended to permit plan trustees to extinguish
those rights for all beneficiaries through a blanket contractual
waiver. In fact, two considerations point the other way. First,
the Supreme Court in Mackey emphasized that Congress’
intent in “bar[ring] the alienation” of pension benefits was to
protect 

. Yet while prohibiting
assignment in the pension context “ensure[s] that the
employee’s accrued benefits are actually available for
retirement purposes,” H.R. Rep. No. 93-807, at 68 (1974),
prohibiting assignment in the health insurance context, as
Appellant argues, could disadvantage patients with shorter-
term needs, limit patient choices, and eventually reduce out-
of-network providers’ market share. Second, unlike in the
pension context, assignment of plan benefits has been “fairly
ubiquitous” in the health insurance context—particularly
assignment of claims to the service provider that performed
the service for which the claim is being submitted. Gregory
F. Jacob, Provider “Standing” Wars Continue, 24 No. 3
ERISA Litig. Rep., Sept. 2016, at 4. Thus, Congress may
have intended a continuation of the status quo and simply
perceived no need to state expressly that insureds retained a
right to assign their benefits to their service providers.

       In short, the text of ERISA, even with the
interpretations in NJBSC and Mackey, is inconclusive on the
question we address today.




                              10
              ii.    Congressional Policy

        Because ERISA does not clearly prohibit anti-
assignment clauses, we confront a statutory gap yet to be
filled. And when it comes to ERISA, “it is well settled that
Congress intended that the federal courts would fill in [such]
gaps by developing, in light of reason, experience, and
common sense, a federal common law of rights and
obligations imposed by the statute.” Teamsters Pension Tr.
Fund of Phila. & Vicinity v. Littlejohn, 

, 208 (3d
Cir. 1998) (citing Varity Corp. v. Howe, 

, 497
(1996)). To do so, we “look to the provisions of the whole
law, and to its object and policy.” Pilot Life Ins. Co. v.
Dedeaux, 

, 51 (1987) (quoting Kelly v. Robinson,

, 43 (1986)). As relevant here, Congress has
explained that “the policy of [ERISA is] to protect . . . the
interests of participants in employee benefit plans,” 29 U.S.C.
§ 1001(b), and we have previously observed that participants’
interests are served by “increasing their access to care,”
CardioNet, Inc. v. Cigna Health Corp., 

, 179 (3d
Cir. 2014); cf. IUE AFL-CIO Pension Fund v. Barker &
Williamson, Inc., 

, 127 (3d Cir. 1986) (“Courts
have indicated that because ERISA” is a “remedial statute[]”
it “should be liberally construed in favor of protecting the
participants in employee benefit plans.” (citations omitted)).

       With those interests in mind, the parties each urge that
plausible policy considerations support their respective
positions. Appellant construes “access to care” narrowly,
focusing on whether individual patients’ choices are limited,
and arguing that enforcing anti-assignment clauses creates
incentives for providers not to serve out-of-network patients
with such clauses in their plans because providers will have
no remedy for nonpayment other than to sue patients—a




                              11
proposition that is both expensive and bad for business. And
eventually, Appellant asserts, the widespread use of anti-
assignment clauses will drive out-of-network providers out of
business entirely, reducing the choices available to patients.
That is because instead of being able to recover directly from
the insurer, out-of-network providers will be forced to rely on
the patient to recover from that insurer before seeking
payment, in turn, from the patient, with each step along the
way adding to the risk of default. Just as we held that “escape
clauses”5 in ERISA-governed plans were unenforceable
because they violated the policies underlying ERISA, Ne.
Dep’t ILGWU Health & Welfare Fund v. Teamsters Local
Union No. 229 Welfare Fund, 

, 164 (3d Cir.
1985), so too, Appellant urges, we should conclude these
negative policy consequences invalidate anti-assignment
clauses.6

       5
         “Escape clauses” are provisions “through which [a]
plan attempts to escape all liability if a participant or
beneficiary is covered by another plan, regardless of the level
of benefits provided by the other plan.” Ne. Dep’t ILGWU
Health & Welfare Fund v. Teamsters Local Union No. 229
Welfare Fund, 

, 149-50 (3d Cir. 1985).
       6
          Appellant separately argues that anti-assignment
clauses reduce patient access to care because they allow
insurers to “easily circumvent . . . assignments by burying an
anti-assignment in a voluminous healthcare plan” that neither
the patient nor the healthcare provider is likely to read in its
entirety. Appellant’s Br. 13. But the mere potential for abuse
is not a reason to hold anti-assignment clauses categorically
unenforceable, particularly given the availability of traditional
contract defenses, such as fraud, misrepresentation, and




                               12
       The Insurers, on the other hand, contend that anti-
assignment clauses further Congress’ related but broader goal
in ERISA of “maintaining premium costs at a reasonable
level,” Horizon Br. 27 (citing Klund v. High Tech. Sols., Inc.,

, 1159 (S.D. Cal. 2005)), and in the
process, of making health insurance, and ultimately
healthcare itself, more accessible to patients. That is because
larger insurance networks can use their market power to cap
the amount that healthcare providers can charge for their
services, and anti-assignment clauses strengthen those
networks by encouraging providers to join and by protecting
insurers from exorbitant demands for reimbursement—a
proposition accepted by a variety of federal and state courts.7


unconscionability. See, e.g., Nw. Nat’l Ins. Co. v. Donovan,

, 377 (7th Cir. 1990) (“If a clause really is buried
in illegible ‘fine print’—or if . . . it plainly is neither intended
nor likely to be read by the other party—this circumstance
may support an inference of fraud.”). And here, in any event,
there was no burying: The anti-assignment provision appears
on the “Introduction” page of the contract.
       7
         Despite the facial appeal of the argument that anti-
assignment clauses help control the rates charged by out-of-
network providers, there is room for skepticism, as most
insurance plans already cap out-of-network reimbursement,
with the plan here a case in point: Although the Insurers make
much of Appellant charging $58,400 for a procedure that they
reimburse at only $2,633, describing it as “unconstrained”
and “a proverbial ‘fox running the henhouse’ scenario,”
Horizon Br. 34, the Insurers fail to show how assignment of
the claim would expose them to additional liability beyond
the $2,633 cap.




                                13
See, e.g., St. 

; Somerset Orthopedic
Assocs., P.A. v. Horizon Blue Cross & Blue Shield of N.J.,

, 463-64 (N.J. Super. Ct. App. Div. 2001).

       Yet the parties’ respective policy arguments are only
as persuasive as the empirical data that support them, and
neither party cites to authoritative empirical data. Instead,
they would have us deduce whether anti-assignment clauses
promote or impede the goals of ERISA on the basis of their
dueling economic arguments and without pointing us to any
congressional findings or hearings on the subject. This we
decline to do, respecting that Congress is far better positioned
to gather data, solicit and respond to the views of its
constituents, and craft a solution that takes such policy
considerations into account. Thus, “[w]here a legislature has
significantly greater institutional expertise . . . the Court in
practice defers to empirical legislative judgments,” Nixon v.
Shrink Mo. Gov’t PAC, 

, 402 (2000) (Breyer, J.,
concurring).

       As the parties’ policy arguments do little to tip the
scales, we turn to the out-of-Circuit authority on which they
rely.

              iii.   The Other Courts of Appeals

       Although neither ERISA’s text nor policy point
decidedly in one direction, persuasive authority from our
Sister Circuits does. In thoughtful and reasoned decisions,
every Circuit to have considered the arguments presented by
Appellant has rejected them, ultimately concluding that
nothing in ERISA forecloses plan administrators from freely
negotiating anti-assignment clauses, among other terms. See




                              14
McCulloch Orthopaedic Surgical Servs., PLLC v. Aetna Inc.,

, 147 (2d Cir. 2017); Physicians Multispeciality
Grp. v. Health Care Plan of Horton Homes, Inc., 

, 1295-96 (11th Cir. 2004); LeTourneau Lifelike
Orthotics & Prosthetics, Inc. v. Wal-Mart Stores, 

, 352 (5th Cir. 2002); City of Hope Nat’l Med. Ctr. v.
HealthPlus, Inc., 

, 228-29 (1st Cir. 1998); St.
Francis Reg’l Med. Ctr. v. Blue Cross & Blue Shield of Kan.,
Inc., 

, 1465 (10th Cir. 1995); 

.

        As purportedly contrary authority, Appellant directs us
to Hermann Hospital v. MEBA Medical & Benefits Plan, 

(5th Cir. 1992), where the Fifth Circuit interpreted
an anti-assignment clause “as applying only to unrelated,
third-party assignees—other than the health care provider of
assigned benefits” because it read that particular anti-
assignment clause as “clearly intended to prevent . . .
assignment of payments under the Plan to . . . creditors . . .
which have no relationship to the providing of covered
benefits.” 

But in a subsequent decision, the court
clarified that it had declined to enforce the anti-assignment
clause in Hermann only because the clause there did not, by
its terms, cover healthcare providers and, consistent with the
other Courts of Appeals, it viewed explicit anti-assignment
clauses as enforceable. 

.

       In sum, we perceive no compelling reason to stray
from the “black-letter law that the terms of an unambiguous
private contract must be enforced.” Travelers Indem. Co. v.
Bailey, 

, 150 (2009); see also In re Kaplan, 

, 818 (3d Cir. 1998) (“Parties are entitled to enforce
the terms of negotiated contracts[.]” (quoting RTC v.




                              15
Holtzman, 

, 424 (Ill. 1993))). We are left with
a gap in the text, reasonable and competing policy arguments
that lack grounding in legislative fact finding, and an
overwhelming consensus among the Courts of Appeals that
“ERISA leaves the assignability or non-assignability of health
care benefits under ERISA-regulated welfare plans to the
negotiations of the contracting parties.” City of 

. We now join that consensus and hold that anti-
assignment clauses in ERISA-governed health insurance
plans as a general matter are enforceable.

      B.      Waiver

       Even assuming that an anti-assignment clause is
generally enforceable, Appellant argues that the Insurers
waived their right to enforce it because they accepted and
processed the claim form, issued a check to Joshua, and failed
to raise the anti-assignment clause as an affirmative defense
during the internal administrative appeals process. We are
not persuaded.

       Under applicable state law,8 a waiver requires a “clear,
unequivocal and decisive act of the party with knowledge of
such right and an evident purpose to surrender it,” Brown v.
City of Pittsburgh, 

, 401 (Pa. 1962), and routine
processing of a claim form, issuing payment at the out-of-
network rate, and summarily denying the informal appeal do

      8
         Although Appellant initially argued on appeal that
we should apply New Jersey law, as opposed to Pennsylvania
law, it has since acknowledged that Joshua’s insurance plan
included an unambiguous Pennsylvania choice-of-law
provision.




                              16
not demonstrate “an evident purpose to surrender” an
objection to a provider’s standing in a federal lawsuit, see,
e.g., Emami v. Quinteles IMS, No. 17-3069, 

, at *3 (D.N.J. Sept. 21, 2017) (holding that “dealing
directly with the [m]edical [p]rovider in the claim review
process[] or . . . directly remitting payment to the [m]edical
[p]rovider” did not constitute a waiver); Shah v. Blue Cross
Blue Shield of Ala., No. 17-700, 

, at *3
(D.N.J. Sept. 21, 2017) (stating that “direct payment to a
patient or healthcare provider does not constitute waiver of an
anti-assignment provision where the plan at issue authorizes
such payment”); Cohen v. Indep. Blue Cross, 

, 606-07 (D.N.J. 2011) (holding that allegations that an
insurer made direct payments to an insured and ignored a
healthcare provider’s appeal did not constitute a waiver). See
J.A. 58 (indicating that Outpatient Ambulatory Surgical
Center services are reimbursed to out-of-network providers at
50%, after deductible); J.A. 36, 40.

      C.      Power of Attorney

        If we reach this point in our analysis, Appellant has
requested that we nonetheless vacate and remand so that it
can perfect an alternative basis for standing: the power of
attorney that it acknowledges was deficient under applicable
state law. Appellant Suppl. Letter Br. 1 (Nov. 7, 2017); see
also Oral Arg. at 8:30 (“[T]he technical requirements are not
there.”).9 The Insurers, for their part, argue that remand

      9
         Although Joshua’s health insurance plan contained a
Pennsylvania choice-of-law provision that governed the
interpretation and application of the plan’s anti-assignment
clause, see supra note 8, that provision does not address the




                              17
would be futile because “[a]n anti-assignment clause
encompasses and applies to a limited power-of-attorney . . .
just as forcefully as it applies to a general ‘assignment,’”
Horizon Suppl. Letter Br. 1 (Nov. 7, 2017), and because
“there is no appreciable distinction between” assignments and
powers of attorney, 

       The Insurers are mistaken. Assignments and powers
of attorney differ in important respects with distinct
consequences for the power of a plan trustee to contractually
bind an insured.       An assignment purports to transfer
ownership of a claim to the assignee, giving it standing to
assert those rights and to sue on its own behalf. See Sprint
Commc’ns Co. v. APCC Servs., Inc., 

, 271
(2008). Thus, a plan trustee can limit the ability of a
beneficiary to assign claims because, among the parties’
“power to limit the rights created by their agreement,”
Restatement (Second) of Contracts § 322 cmt. a (1981), is the
power to restrict ownership interest to particular holders. A
power of attorney, on the other hand, “does not transfer an
ownership interest in the claim,” W.R. Huff Asset Mgmt. Co.
v. Deloitte & Touche LLP, 

, 108 (2d Cir. 2008),
but simply confers on the agent the authority to act “on behalf

choice-of-law applicable to a power of attorney. But we have
no need to resolve whether Pennsylvania or New Jersey law
is applicable because Appellant’s power of attorney failed the
requirement of both laws that there be at least one witness.
See 20 Pa. Cons. Stat. Ann. § 5601(b); N.J. Stat. Ann.
§§ 46:2B-8.9, 46:14-2.1(b); see generally Hammersmith v.
TIG Ins. Co., 

, 229-30 (3d Cir. 2007) (noting
that choice-of-law analysis is unnecessary where the laws at
issue do not conflict).




                              18
of the principal,” In re Complaint of Bankers Tr. Co., 

, 881 (3d Cir. 1984).

        As these principles apply here, our holding today that
the anti-assignment clause is enforceable means that Joshua,
as plan beneficiary, did not transfer the interest in his claim,
but it does not mean that Joshua cannot grant a valid power of
attorney. To the contrary, because he retains ownership of his
claim, Joshua, as principal, may confer on his agent the
authority to assert that claim on his behalf, and the anti-
assignment clause no more has power to strip Appellant of its
ability to act as Joshua’s agent than it does to strip Joshua of
his own interest in his claim. See Titus v. Wallick, 

, 289-90 (1939) (noting that a power of attorney did not
“operate as an assignment to vest the attorney with such title
or interest as will enable him to maintain the suit in his own
name”); W.R. 

(concluding that “a mere
power-of-attorney . . . does not confer standing to sue in the
holder’s own right,” whereas “an assignment of claims
transfers legal title or ownership of those claims and thus
fulfills the constitutional requirement of an ‘injury-in-fact’”).
Indeed, the Insurers’ argument that anti-assignment clauses
preclude principals from granting a power of attorney to their
agents not only lacks support; it also seems particularly ill-
suited for the healthcare context where patients must rely on
their agents when they anticipate even short-term
incapacitation after medical procedures, see Powers v. Fultz,

, 51 (7th Cir. 1968), and where those who
anticipate longer-term unavailability, like deployed service
members or those suffering from progressive conditions,
depend on their designated agents to handle their medical
claims and other affairs in their absence, see, e.g.,
Bartholomew v. Blevins, 

, 499 (6th Cir. 2012)




                               19
(deployed service members); Jay E. Hayden Found. v. First
Neighbor Bank, N.A., 

, 384 (7th Cir. 2010)
(incompetent persons).

       Accordingly, we reject the Insurers’ contention that the
presence here of a valid anti-assignment clause renders futile
any remand for Appellant to perfect its power of attorney.
Nonetheless, we decline to remand for a different reason:
Appellant waived its arguments concerning the power of
attorney by failing to raise them in its opening or reply brief
and, indeed, did not address the significance of the power of
attorney until we invited it to do so in supplemental briefing.
See United States v. Quillen, 

, 224 (3d Cir.
2003).

                         *    *    *

       In sum, anti-assignment clauses in ERISA-governed
health insurance plans are generally enforceable, the Insurers
did not waive their objections to Appellant’s standing, and
Appellant, having waived its argument for a remand to
perfect the power of attorney, concedes that the power of
attorney in this record is invalid under state law. For those
reasons, the District Court correctly held that Appellant
lacked standing to proceed in federal court, and we will
affirm the District Court’s judgment of dismissal.




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