Wouldn't the texture fillrate be different than what is on Nvidia's site due to the lower number of ROP's? I think even if so, that's really sort of splitting hairs. I'm not sure, but from what I've read I thought that number was tied to ROP's. I'm no expert, certainly could be mistaken.
But, I think seeing how Nvidia has responded, it's obvious that something was wrong in the way the GTX 970 was launched and advertised. They seem to be busy. I don't think a lawsuit will come of this, not sure it would fly. It isn't uncommon for a company to have incorrect specs on something, then immediately change it when that is found. I think for a lawsuit to go forward there would have to be evidence that Nvidia knowingly gave incorrect information and kept it there. I doubt it'd go that far or could be proven.
But, I wonder if Nvidia might be lawfully obligated to take returns (or their partners) because of the wrong specs, if someone wants a return..? Personally, I think that's the right thing to do. Of course I know about as much about business law as the most people, that is to say not much.
*edit - Just remembered this, it has some parallels.
Cobra recall. Free upgrades to GTX 980's to get to the advertised spec's?