I hope it fails, and it will be an uphill battle. There is an actual REASON why this 'missing space' happens... It has to do with how OSes count Kilo, Mega, Giga, Tera, etc... and how drive manufacturers count Kilo, Mega, Giga, Tera. Drive manufacturing counts Kilo/Mega/Giga/Tera as factors of 1000 (10^3 is Kilo 10^6 is Mega, etc) which is accurate, but OSes count space different due to a trick to save CPU time on old machines. They count in factors of 1024 (2^10 is Kilo, 2^20 is Mega, etc). Because of this difference, what you see spewed back on the computer screen is less than what is written on the box you buy.
To be honest, the wrong groups are being targetted with this lawsuit. Apple, Sun, Microsoft and others should be sued for making OSes that deceptively use 1024 when 1000 should be used for these standard prefixes. There have even been prefixes assigned for a counting system where Kilo = 1024 (Kibi, Mebi, Gibi, Tebi, etc)... but OS makers refuse to use them.
The drive manufacturers are advertising it just fine... so are the computer makers. Especially if you are smart enough to read the fine print on what 1 GB really equals. However, the OS is the one giving the false reading.
Essentially, it boils down to the fact that you ARE getting what you are told you are getting, but the OS is counting what you have in a different manner, giving the illusion of less space.