Not saying I agree or disagree but this is how the case is likely to go. Anyone with a little common sense and knowledge of the legal system will see it coming.
1. The 3.5 GB vs. 4 GB Vram has no LEGAL grounds to stand on (sure there are moral or ethical grounds but this is court). Card was marketed as a 4 GB card and has 4 GB vram on board which is fully accessible. Performance partition or not this there is nothing deceptive. Card was never marketed at 4 GB "full performance", it was marketed as 4 GB and it was assumed that, like all the other cards on the market, this vram was completely high performance. "Standard Memory Config" could imply many things; mainly that it uses a typical memory bus.
Subsequently, Plaintiff learned that this was due to the material misrepresented or undisclosed fact that the alleged 4GB GDDR5 (Graphic Double Data Rate x 5 Memory) capability of the GPU, in actuality, only uses 3.5GB at the GDDR5 operating speed, while the remaining 500MB operates 80% slower, therefore not qualifying as actual GDDR5 memory capability device.
Bolded part is mine and it quite unequivocally false.
2. Provided proof contains no claims of L2 or ROP.
3. The suit claims Gigabyte is at fault and engaged in deceptive practices (no grounds for this claim).
4. One would have to prove that the L2 and ROP count were advertised. (Nvidia's lawyers will attempt here to claim that specs provided to third party review sites are not advertising). "We messed up, " they will claim, " but we never advertised those facts."
I think Nvidia is at fault here and really think they should be doing damage control or something. However, putting aside any personal feelings and looking at the case in a purely objective point of view I do think Nvidia will win should a trial be called.