1. Providing a service like this is kinda asking for trouble, especially if you make money on it through ads or other means. That said...
2. I don't think it makes a difference legally (could of course differ from nation to nation) but when games aren't actually sold anywhere (and no, I don't count the second hand market) then I personally have no issues with sites providing roms or iso's for those games. If the maker wants to continue to make money on those titles they should make them available for purchase.
3. 12 million is overkill.
Super Mario World, Mario Kart, Super Mario Bros. 3 were all specifically named in the lawsuit. Nintendo has made these available for purchase on multiple hardware iterations. There is "zero" argument for these titles to be necessary to appear on a ROM site.