The problem is not what it is done. The problem is what have been promised.
Crytek didn't promise DX11. There was a rumour that NVIDIA paid Crytek to make DX11 for Crysis 2 and people assumed it would be based on Crysis 1 being DX9/10, 4 years ago.
We knew Crysis 2 was going to be on the consoles, so why is it a surprise to people Crysis 2 is DX9? Crytek marketed their engine towards game houses, not users, just like Epic do with UE3. The engine can do DX11 but it doesn't mean the developers of the game that use it will use DX11.
All DX11 does is make it easier to develop features, it doesn't mean they will use it. There is also the point that there are a lot of XP users out there still use only have DX9, which is a wider audience, more sales.
They did
Sorry, the article is in Spanish: http://www.nvidia.es/object/nvidia-gtx-580-press-20101109-es.html
Presentation of Nvidia GTX 580 GPU. Cevat Yerli, max Crytek responsible, said that they where going to us alll the technology present in this video card. This is a DX11 card, and this means to use DX11.
It is an example, and there are a more, for sure. You only need to Google a little (with time constraint, cause the lot of news of Crytek and Dx11 of this last year)... but you can find it