Analysis · Consent & revocation
CVS Sued Over ExtraCare Text Sent 70 Days After a Confirmed STOP
The bottom line: a California consumer alleges CVS Pharmacy, Inc. confirmed her STOP request and then texted her again about 70 days later. The proposed class action, O'Brien v. CVS Pharmacy, Inc., No. 2:26-cv-03352, was filed September 23, 2026, in the U.S. District Court for the Eastern District of California. It brings two do-not-call counts under the Telephone Consumer Protection Act (TCPA).
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What happened
According to the complaint:
- The plaintiff, a Tehama County resident, has had her cell number on the National Do Not Call Registry since 2009.
- She never signed up for ExtraCare, CVS's loyalty program.
- In May 2026, she received two ExtraCare promotional texts from short code 28732 urging her to finish joining.
- She replied with STOP. CVS replied that she would no longer receive ExtraCare texts.
- On July 26, 2026, she allegedly received another nearly identical ExtraCare text from the same short code.
The complaint argues this shows CVS failed to record and honor opt-outs across its texting systems and vendors. CVS has not responded in court, and nothing has been proven.
The complaint is available here: O'Brien v. CVS ExtraCare text class action complaint.
The law
Both counts arise under 47 U.S.C. § 227(c):
- Internal do-not-call. Federal Communications Commission (FCC) regulations require that a seller honor a do-not-call request within 10 business days. The first proposed class covers people who got more than one promotional text in 12 months, with at least one arriving more than 10 business days after a STOP reply.
- National Do Not Call Registry. The second class covers people who got more than one promotional text in 12 months at a number registered for at least 31 days.
The complaint seeks $500 per violation, up to $1,500 if willful or knowing, and an injunction requiring CVS to honor opt-outs, screen against the Registry and maintain compliant policies and vendor controls.
The open question
Whether a text is a "telephone call" under § 227(c)(5) is contested. The Seventh Circuit held in July 2026 that it is not, and several district courts agree. The Eastern District of California sits in the Ninth Circuit, which has not resolved the question in this context. Expect CVS to raise it.
What comes next
The case is assigned to U.S. District Judge Daniel J. Calabretta. A waiver of service was filed September 25, 2026, which gives CVS more time to respond. No class has been certified.
What this means for you
- A confirmation is not compliance. If your system says "you will no longer receive texts," every system must actually stop.
- Sync opt-outs across platforms and vendors. A suppression list that lives in one tool is not enough.
- Scrub promotional texts against the Registry unless you have consent.
- Audit after migrations. Old lists and new short codes are where suppressions get lost.
Not legal advice. TCPA.com provides general information, not legal advice, and is not a substitute for the advice of an attorney. Do not rely on it. Verify any action with your own licensed lawyer before you take it. See our Terms of Use.
Primary sources
About the Author: Harrison Gevirtz
Harrison Gevirtz serves as the Chief Strategy Officer (CSO) of Ringba, a call tracking and pay per call platform, and is based in Las Vegas, Nevada. Harrison Gevirtz is a serial operator in call tracking, call routing and telemarketing operations, and for the past several years he has focused on how federal regulations affect the daily operations of these industries. At TCPA.com, Harrison Gevirtz covers TCPA litigation, Telemarketing Sales Rule (TSR) enforcement, tech support fraud prosecutions and Federal Communications Commission (FCC) rulemaking in a way that's accessible to the non-lawyer executive or compliance manager.
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