Sepulveda

MEMORANDUM

Plaintiffs, current and former Assistant Managers of Defendant, Wal-Mart Stores, Inc., appeal the district court’s order denying their motion for class certification. We previously reversed in part and affirmed in part the denial of class certification. See Sepulveda v. Wal-Mart Stores, Inc., 275 Fed.Appx. 672 (9th Cir.2008). Wal-Mart filed a petition for rehearing and petition for rehearing en bane. Decision on the petitions was stayed pending the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541 , 180 L.Ed.2d 374 (2011). Having requested, received, and reviewed supplemental briefs from the parties post -Dukes, we now grant the petition for rehearing and vacate our previous disposition.

We previously held that the district court abused its discretion by denying class certification under Federal Rule of Civil Procedure 23(b)(2) because it relied on the non-incidental test not followed by our circuit as of that time. See Sepulveda, 275 Fed.Appx. at 672 . In Dukes the Court explicitly adopted the “not incidental” test for certification under Rule 23(b)(2). Dukes, 131 S.Ct. at 2557 (“We now hold that [claims for monetary…