Poking around a bit, Andrew Sokolowski was a Senior Attorney at the firm that filed the class action suit over Facebook's IPO, so he's not just someone trying to make a name for himself.
While I don't see the suit as having any merit (as the free space on the device is easily-obtained knowledge for anyone who read ANY review of it) I do think that, for a device intended for more serious use cases than angry birds, the Surface could certainly use more storage, especially given the tiny cost it would have added.
Besides, Microsoft could have just had it start at 128 GB, and used that as a marketing thing.