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As far as flexing bodywork, anything that's unstressed (not rigidly attached to the tub) can flex in reaction to running over a bump or curb. All LMPs are guilty of that, and even GTs do it, especially the rear wings.
The issue with Toyota is that the rear wing heavily deflects/rotates at high speed, and according to Sam, can raise or lower by nearly 4 inches (100mm), in addition to "normal" deflection in reaction due to running over curbs or bumps (Newton's Third Law of Motion--every action has an equal and opposite reaction, and his First Law of Motion--inertia/unless acted upon, an object will tend to stay in its original motion).
The Toyota wing is a case in point of Newton's First Law described above. The issue is that under normal conditions, aside from some natural flexing due to reactions to the vehicle going over a bump or curb, the rear wing it supposed to be totally inert with regards to its mounting.
FIA and ACO rules specifically spell out that movable aerodynamic devices that excessively move in reaction to aero forces and are built to do as such are illegal. Again, one could argue that the Toyota wing being is illegal on the grounds that its a "movable aerodynamic device", which it clearly is.
Now we have to wait to see if the ACO bans it before COTA, or they let Audi and Porsche, as well as Rebellion and Lotus, develop their own solutions. Again, there hasn't been a protest publicly by Audi or Porsche, just like the front flow modifiers/strakes because everyone is running one and they don't want to get something banned that they can make use of. But there does seem to be some grumbling behind the scenes with the ACO and FIA with teams and the media asking "how is this legal given what the device does?"
And if the ACO and FIA take action against Toyota, they could simply write a rules clarification banning/restricting the wing solution, or they could even go as far as this being WRC turbocharger restrictor-gate all over again if they wanted to I'd imagine. I'd think that at worst the ACO would ask Toyota to stash away the device, because I don't think that the ACO would risk brassing off a manufacturer who stepped in when Peugeot pulled out and have increased their advertizing for the WEC for this year--not to Audi or Porsche levels, but more than what it was.
A huge penalty over this, if the ACO and FIA end up going that direction, would be the perfect excuse for Toyota to can the whole program, which I don't think that the ACO and FIA want.
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